2023 (3) TMI 379

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....in-Original [Impugned order] dated 28.9.2012 passed by the Commissioner Service Tax, Delhi demanding Service tax of Rs. 10,89,40,842 for the period 10.9.2004 to 31.3.2008 along with interest and imposing penalties under sections 76,77 and 78. The operative part of the order-in-original is as follows: "(i) I confirm the demand of service tax amounting to Rs. 10,65,92,892/- (Rupees Ten Crore Sixty Five Lac Ninety Two Thousand Eight Hundred and Ninety Two only) against M/s HLS Asia Limited, New Delhi under Section 73 (1) of the Act read with Rule 6 (1) of Service Tax Rules, 1994 and order that the same be recovered from them. (ii) I confirm the demand of Education Cess of Rs. 21,31,856/- (Rupees Twenty One Lac Thirty One Thou....

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.... under Section 78 shall be 25% of the amount so determined. The benefit of reduced penalty shall be available only if penalty so determined is also deposited within 30 days of the communication of this order". 2. The appellant provides wireline logging and perforation services to Oil and Natural Gas Commission [ONGC] and Oil India Ltd. [OIL] and data processing services to OIL under agreements. ONGC and OIL drill the earth for petroleum and for this operation, the characteristics of the rock through the strata are to be ascertained. The appellant systematically takes many measurements and transmits them above ground through a electro-mechanical cable and this service is known as wireline logging. 3. In the casing inserted during drill....

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....el for the appellant contests the impugned order on merits and also on limitation. 8. On merits, it is the submission of the learned counsel that once it is undisputed that from 1.6.2007, the services rendered by the appellant fall under 'mining services', they cannot be classified under any other category prior to that date. Even otherwise, the appellant is not testing anything but is only taking measurements and supplying them to its clients and in case of OIL, it was also processing the data so collected during measurements. The other service provided is of perforations or making holes in the casing to enable flow of oil which can also not be considered as technical testing and analysis. These services, nevertheless assist its clients....

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.... wrong in classifying these services under 'mining services' and the department itself was equally wrong in accepting their classification under 'mining services', the department cannot classify the services under any other head, including TTA. We do not find anything in the impugned order explaining why the department and the appellant were both wrong in classifying them as 'mining services'. Therefore, the demand cannot be sustained on merits. 13. As far as the limitation is concerned, the demand invoking extended period of limitation can be raised as per section 73 only if there is (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d) suppression of facts; or (e) violation of Act, with an intent to evade payment of service t....