TaxTMI 
TaxTMI 
2022 (3) TMI 511
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....ice. Accordingly, a Show Cause Notice 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, excava....
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....ST. 2.3 He also argued that if the true nature of service is ascertained from the tender documents 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 un....
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....nite seams for mining. (c) Some times during OB removal, intermediate thin lignite seams or other economical minerals may intercept, which may or may not be quality-wise suitable for sale. In such cases, lignite or other 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 furthe....
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....g more general description. In the facts of the present case, it is undoubtedly clear that between appellant and the service recipient M/s. GMDC even though the nature of activity independently is of excavation and removal of soil but the objective of this activity is for mining 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 t....
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....ning, Excavation, Earthmoving and Demolition services. 6. In the aforesaid circumstances, we set aside the order of the Commissioner and allow the appeal. The Miscellaneous Application filed by the appellants also stands disposed of From the above judgment, it can be seen that in the appellant's own case similar activities were considered as 'Mining Service' therefore, the ratio of the above judgment directly applies in the facts of the present case also. The identical issue has been considered in the various judgments cited by the appellant as mentioned in above Para 2.1 wherein, similar view was taken by the Tribunal therefore, we can conveniently view that the issue is no longer res-integra. It is also pertinent to note that the appellant, on the same service, paid service tax under the category of 'Mining Service' with effect from 1.6.2007 and it is admitted fact that the revenue had accepted the classification of the same service under 'Mining Service'. It also strengthens the case of the appellant that the service provided by them is of 'Mining Service' and does not fall under the category of 'Site Formation and Clearance, Excavation and Earth Moving and Demolitio....