TaxTMI 
TaxTMI 
2022 (3) TMI 511
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....dated 22-12-2009 was issued to the appellants demanding service tax for the period 16-6-2005 to 31-5-2007 along with interest and also proposing penalties on them. The Show Cause Notice was adjudicated by the Commissioner against the appellants vide impugned order confirming the service tax of Rs. 2,10,25,661/- with interest and imposing penalty under Sections 76, 77 and 78 of the Finance Act. Appellants have challenged the impugned order in the present appeal. 02. Shri Jigar Shah, Learned Counsel appearing for the appellant submits that though the subject mentioned in Tender No. LP-2/04-05 dated. 23.12.2004 is "hiring of heavy earthmoving machinery for overburden removal at Lignite Project, Panandhro; the actual work carried out under the said contract is overburden removal during the mining of lignite. The same is also clear from the summary table given on the first page of Tender Documents. Such Service can, therefore be said to be classifiable only under the category of "Mining Services" and taxable w.e.f. 01.06.2007 only. "Mining" is not a single and isolated activity but it comprises of a series of activities involving drilling, excavation, overburden removal, extraction of ....
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....uments then the Appellants were required to provide only excavation machineries on hire. In that case the activity would fall under supply of tangible goods for use and would be taxable only w.e.f 16.05.2008. 03. Per contra Shri Dinesh M. Prithiani, Learned Assistant Commissioner (AR) for the respondent revenue supports the impugned order and submits that tender was awarded to Appellant for Overburden Removal at Lignite Project and not for mining activity. Commissioner has rightly demanded the service tax on this activity under "Site formation and clearance, excavation and earthmoving and demolition service". He relies upon the decision of the Hon'ble Tribunal order No. 52288/2018 dated 20.06.2018 passed by in the matter of HANUMANT CONSTRUCTION PVT. LTD. VS CCE RAIPUR. 04. We have considered the submissions made by both the sides and perused the records. In the present case, the issue to be decided is that the service in question is classifiable under the category of 'Site Formation and clearance, Excavation and Earth Moving and Demolition service' as contended by the revenue or under the category of 'Mining service' as contended by the appellant. As per the facts of the case, t....
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.... economical minerals so intercepted will also be excavated and stacked by the successful bidder (herein after called Contractor), at place(s) directed by the Mines Manager, at no extra payment. (d) If such lignite seams are mined out departmentally or through any other authorised agency, proper records, duly signed by the Mines Manager and the Contractor, shall be maintained in terms of tonnage of lignite so removed. Pro-rata volumetric quantity shall then be reduced from Contractor's measured quantity for the plot. Specific gravity of lignite, for this purpose, shall be considered as 1.2 From the above clauses of the contract, the nature of the work is the removal of overburden in relation to mining of lignite therefore, the removal of over burden is exclusively in relation to mining of lignite only therefore, the activities carried out by the appellant i.e. Removal of over burden by excavation in relation to mining of lignite. It is further noticed that the service recipient M/s. GMDC also issued a certificated dated 16.3.2012 which is reproduced below: From the above certificate issued by the Gujarat Minerals Development Corporation Ltd., who is the recipient of service....
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....g only. In case of any mining activity, the activity of removal of over burden is inevitable. If the contention of the revenue is accepted then in case of all mining activities, the activity of excavation, removal of soil will go out of mining service which is not the intention of the legislature. Therefore, considering the above provision for classification of taxable service particularly in terms of Sub-section (1)(2a) of Section 65A as per the nature of the service in the present case, the removal of over burden which is exclusively meant for mining of lignite shall fall under the category of mining service only. The same issue in the appellant's own case came before the Tribunal Division Bench- Delhi which is reported at ASSOCIATED SOAPSTONE DISTRIBUTING CO. P. LTD. vs. CCE- 2014 (34) STR 865 (Tri.-Del.) wherein, the tribunal has passed the following order:- 5. After hearing both sides, we find that issue involved is whether activity undertaken by the appellants falls under the Site Formation, Clearance and Excavation and Earthmoving and Demolition services as contended by Revenue or under Mining Service as contended by the appellants. For the sake of convenience, Section 65(....