TaxTMI 
TaxTMI 
2023 (6) TMI 310
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.... 18,32,45,744/- 2. Business Auxiliary Service [Section 65(19)(v)] 01.07.2003 2,03,98,752/- 3. Site Formation and Clearance, excavation and Earth Moving and Demolition services [Section 65(97a)] 16.06.2005 12,73,55,773/- Total demand of Serviced Tax including Edu. Cess. 33,10,00,270/- 3. The Notice was adjudicated vide Order-in-Original No. 01/Commr./ST/Kol/2008-09 dated 25.09.2008, wherein the demand of service tax with Education Cess amounting to Rs. 33,10,00,270/- was confirmed under the three different heads as demanded in the Show Cause Notice. Aggrieved against the impugned order, the Appellant is before us. 4. In their submissions, the Appellant stated that it is a well settled position in law that when a particular levy was introduced for certain activities with effect from a particular date, it evident that such activities were not taxable to service tax prior to that date. In the present case 'mining services' were brought under service tax with effect from 01/06/2017. Hence, for the period prior to 01/06/2007 t....
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.... 2021 (44) GSTRL 297 (Tri.- Kolkata). Faridabad Curgaon Minerals Vs. Commr. Of C. Ex. Cus & ST, BBSR-II. 6. The Appellant contended that the Ld. Commissioner has erred in not following the Board CBEC Circular F. No. 232/2/2006-Cx.4 dated 12.11.2007 which categorically states that no service tax on mining activities is leviable before 01.06.2007. The relevant para 4 of the Circular is reproduced below: "4 Coal cutting or mineral extraction and lifting them up to the pithead :- These activities are essential integral processes and are part of mining operations. As stated earlier, mining activity has been made taxable by legislation under the Finance Act, 2007 (w.e.f. 1.06.2007). Prior to this date, such activities, being part of mining operations itself are not subjected to service tax. Therefore, no service tax is leviable on such activities prior to the said date." 7. The Appellant stated that in the present case the contracts were not restricted to site formation, Cargo Handling and Business Auxiliary Service, but also included a host of other activities associated with mining activities viz. removal of over....
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....it Court, the proviso to Section 73(1) of the Act can be invoked only when there is an allegation of fraud or collusion or wilful mis-statement or suppression of facts or contravention of the provisions of the Act or the Rules with intent to evade payment of service tax. Therefore, the show cause notice should clearly indicate the wilful mis-statement or suppression of facts or fraud or collusion as done by the assessee with an intention to evade payment of tax. On a careful reading of the show cause notice, it is evidently clear that there is absolutely no whisper of any allegation of wilful mis-statement or suppression of facts or fraud or collusion as committed by the respondent assessee with an intention to evade payment of service tax. In the absence of such factual finding, the extended period could not have been invoked. ....................."[Emphasized] (iii) 1995 (78) E.L.T. 401 (SC), Pushpam Pharmaceuticals Company Vs. CCE, Bombay. The Hon'ble Supreme Court in this case at para 3 has held as under:- "3. Law about excisability of exempted goods was settled by this Court in Wallace Flour Mills Co. Ltd. v. Collector of Central Excise, ....
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....s issued Circular F. No. 232/2/2006Cx.4 dated 12.11.2007, which categorically states that no service tax leviable on mining activities prior to 01.06.2007. However, the adjudicating authority failed to appreciate the clarification and went ahead to confirm the demand made in the Notice. The relevant para 4 of the Circular is reproduced below: "4 Coal cutting or mineral extraction and lifting them up to the pithead :- These activities are essential integral processes and are part of mining operations. As stated earlier, mining activity has been made taxable by legislation under the Finance Act, 2007 (w.e.f. 1.06.2007). Prior to this date, such activities, being part of mining operations itself are not subjected to service tax. Therefore, no service tax is leviable on such activities prior to the said date." 13. The Appellant cited a plethora of decisions of the Hon'ble Supreme Court, High courts and Tribunals, which are listed in paras 4 and 5 above, in support of their claim that 'mining services' were not leviable to service tax prior to 01/06/2007. We find that the decisions cited by the Appellant are squarely applicable in this ....