2023 (5) TMI 390

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....al No. 85680 of 2013 HON'BLE MR. S.K. MOHANTY, MEMBER (JUDICIAL) And HON'BLE MR. M. M. PARTHIBAN, MEMBER (TECHNICAL) Shri Bharat Raichandani, Advocate for the Appellant Shri Nitin M. Tagade, Authorized Representative for the Respondent ORDER PER : S. K. MOHANTY The applicant/appellants have filed the miscellaneous applications, praying for consideration of additional grounds for disposal of the present appeals. Learned Authorized Representative appearing for the Revenue strongly opposed to the additional grounds pressed by the applicant on the basis that the grounds urged in the miscellaneous applications have already been dealt with by the adjudicating authority and such grounds have no relevance for consideration by the Tribunal....

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..... The issue involved in all these appeals are identical and accordingly, the same are taken up for hearing together and a common order is being passed. 3. In the impugned orders passed by the learned Commissioner of Central Excise & Service Tax, Nagpur, the demand of service tax along with interest was confirmed and penalties were imposed on the appellants on the grounds that the activities undertaken by them pursuant to the work order issued by M/s. Western Coal Fields Ltd., Nagpur should appropriately be classifiable under the taxable entry of "Site Formation and Clearance" service as defined under Section 65 (97a) of the Finance Act, 1994. 4. Learned Advocate appearing for the applicants submitted that for carrying out the activities e....

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.... the appellant has been clearly spelt out in the work order issued by the service recipient i.e., M/s. Western Coal Fields Limited, Nagpur and the same are extracted herein below: Removal of all type of material in all kinds of strata by hiring of equipments such as HEMM, Tippers, Drills, Dozers, Grader and water sprinkler including its drilling, excavation, loading, transportation, dumping, spreading, dozing, grading and water sprinkling at specified places as per instruction of Engineer-in-charge at specified areas such as Mungoli OC Mine of Wani Area. On careful examination of the impugned orders, we find that the learned adjudicating authority has only referred to the definition of the impugned service as defined in the Finance Act,....

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.... be done for ascertaining the correct classification of service for the purpose of levy and collection of the service tax. Since, this particular aspect has to be dealt with at original stage, which as admittedly has not been done, we are of the considered view that the matter should be go back to the original authority for a proper fact finding as to whether the activities under taken by the appellants should be classifiable under the taxable entry of "Site Formation Excavation and Clearance Service" under Section 65 (97a) of the Finance Act, 1994. We also find that the original authority has dealt with the other aspects namely short payment of service tax, irregular availment of Cenvat credit etc. Since, the issue of availment of Cenvat c....