TaxTMI 
TaxTMI 
2023 (12) TMI 1068
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..... The Appellant was issued a Show cause Notice dated 07.04.2014, demanding total Service Tax of Rs.23,12,96,812/-on various Work Orders and recovery of Cenvat credit of Rs. 9,36,76,181/-under Rule 6(3)(i) of Cenvat Credit Rules, 2004 (CCR "04). The total Service Tax/ Cenvat credit r̥eversal demanded in the Notice amounts to Rs. 32,49,72,993/- along with interest and penalties, on the following grounds: (i) Non-payment of Service Tax on evacuation of Ash and Nuisance Free Disposal at the abandoned mines of CCL/BBCL under the category of 'Cargo Handling Services" (ii) Non-payment of Service Tax on transportation of Coal, under the category of 'Mining Services' (iii) Non-payment of Service tax under the category of 'Supply of Tangible Goods Service' (iv) Non-payment of Service Tax on the services availed for hire of trucks from various persons for transportation of coal under the category of GTA Service (v) Violation of CCR '04 by not paying 6% on the value of exempted services 3. The Notice was adjudicated by Commissioner Service Tax, Ranchi, vide impugned Order-in-Original dated 20.02.2015, wherein the Ld. ....
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....e demand of Service Tax under Cargo Handling Service, the Appellant submits that they have actually rendered transportation service to Tenughat Vidyut Nigham Limited, Damodar valley Corporation and Mejia Thermal Power Corporation for evacuation of ash from different filled up Ash Ponds located at the power stations, by way of Nuisance Free Transportation to the abandoned mines of CCL, ECL, BCCL for the disposal of ash. The ash was transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines. The Ld. Commissioner has classified this service under the category of 'Cargo Handling Service, and confirmed Service Tax whereas they have rendered only transportation service. The Appellant further submits that the department itself was not very clear about the classification of this service. The SCN dated 20.10.2008 issued to the Appellant earlier classified the same service under the category of 'Cleaning Service'. Further, in respect of the transportation services rendered by them, the service receiver has paid service tax under the category of 'GTA Service' in terms of Ru....
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....rvice tax under GTA for the full value. Hence demanding Service Tax from the sub-contractor transporter would amount to 'double-taxation'. In support of their contention, the Appellant relied on the decision in the case of Lakshmi Narayan Transport Vs Commissioner of CGST and Central Excise, Bhubaneshwar, reported in (2023) 11 Centax 60 (Tri.-Cal). 6. In view of the above submissions, the Appellant prayed for setting aside the demands and allowing their appeal. 7. The Ld. D.R submits that the contract entered by the Appellant are not mere transportation contracts. Every contract has to be looked into separately to identify the nature of service rendered. The contract for evacuation of ash from different Ash Ponds located at the power stations to the abandoned mines is not transportation service as the distance involved in these contracts is only two to three kilometers. Here, the primary service is loading and unloading and hence it has been rightly classified as 'Cargo Handling service' in the impugned order. Regarding the demand of service tax under 'Mining service', he submits that the primary service in this case is not transportation. The Appellan....
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....cited the decision in the case of Purba Medinipur Jilla Parishad vs. CCE, Haldia-, Order No. FO/77330/2018- CESTAT Kolkata, in support of their contention. We observe that this decision is squarely applicable in this case. The relevant para of the decision is reproduced below: 5. We find that the issue is no more res integra and has been decided by the Tribunal in the case of Commr. of Central Excise & Service TaxRanchi Vs. M/s. Hindustan Steel Works Construction Ltd. reported in 2018 (11) TMI 1217-CESTAT, Kolkata. The relevant paragraphs of the above mentioned order are being reproduced: " .... 8. The Ld. Advocate, also contended that the fly ash is a saleable goods, which is used in the manufacture of ceramic tiles, mineral wool, etc. And is not a waste since, it is capable of being sold in the market. It is his submission that the removal of fly ash from the pond cannot be termed as cleaning activity under Section 65(24b) of the Finance Act, and accordingly, no Service Tax would be attracted in this case. He relied upon the decisions of the Tribunal in the case of Aakriti Construction (P) Ltd. v. CCE, 2017 (7) G.S.T.L. 478 (Tri.-Del.), and Calcutta Industrial S....
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....P area, DTPS and it would come under cleaning service. It is further observed that the appellant entered into contract for cleaning of premises of an industry and would come under the cleaning service as defined under Section 65(24b) w.e.f. 16.06.2005. 8.3 The definition of cleaning service under Section 65(24b) is reproduced below: [(24(b) cleaning activity means cleaning including specialized cleaning services such as disinfecting, exterminating of objects o65 24 (b) of (i) Commercial or industrial buildings and premises thereof; or (ii) Factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and remises thereof, But does not include such services in relation to agriculture, horticulture, animal husbandary or dairying] From the above definition, it is clear that the cleaning activity would cover cleaning of commercial or industrial building or premises thereof or factory, plant or machinery, tank or Reservoir of such commercial or industrial buildings or premises. Service Tax Appeal No. 79/2019 8.4 It is seen from the letter dated 03.02.2004 of DVC that the appellant was awarded tender for excavation of Ash from different field ....
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.... the view that the activity undertaken by the respondent i.e. transportation of coal from the pit-heads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105)(zzp) of the Act, namely, under the head "transport of goods by road service" and does not involve any service in relation to "mining of mineral, oil or gas" as provided by Section 65(105)(zzzy) of the Act. 7. The reliance placed on the definition of the term "mines" under Section 2(j) of the Mines Act, 1952 does not assist the Revenue inasmuch as what would be indicated by the said definition is that a mine is not to be understood necessarily in respect of pit-heads of the mining area or the excavation or drilling underground, as may be, but also to the peripheral area on the surface. The said definition has no apparent nexus with the activity undertaken and the service rendered. 8. For the aforesaid reasons, we find no merit in this appeal(s). The appeal(s) is accordingly dismissed. 13. Accordingly, by relying on the decision cited above, we hold that the service rendered by the Appellant is transportation service. As the receiver has already paid service ....
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....to M/s.JSL. Service tax under reverse charge was duly discharged by M/s. JSL on the GTA service. 24.--------------------------------------------------------------------- 25.----------------------------------------------------------------------- 26. We observe that Board has issued Circular No. 186/5/2015-ST dated 5-10- 2015, clarifying the issue, which is reproduced below: "3. Goods Transport Agency (GTA) has been defined to mean any person who provides service to a person in relation to transport of goods by road and issues consignment note, by whatever name called. The service provided is a composite service which may include various ancillary services such as loading/unloading, packing/unpacking, transshipment, temporary storage etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by GTA himself or may be sub-contracted by the GTA. In either case, for the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of ancillary services provided in the course of transportation of goods by road. These services ar....
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....ts/Work Orders. However, the Contracts/ Work Orders dealt with in the SCN dated 11.04.2014 are different from the earlier Work Orders. The provision of service depends on each Work Order separately. The earlier Notices have not demanded Service Tax on Supply of Tangible Goods Service' or GTA service'. Hence, they contended that the demands in the SCN dated 11.04.2014 are not hit by limitation. 18. In this regards, we observe that the issue involved in the Work Orders covered by earlier Notices were also related to the issue whether Evacuation of Ash from the ponds and transporting it out side ti fill the abandoned mines. Earlier Notice demanded service tax under the category of ,Cleaning Service, for the same work. Thus, it is evident that even though the Work Orders are different, the issue involved is the same. The demand was under 'Cleaning Services' earlier, whereas it is under 'Cargo Handling Service' now. Thus, we hold that as per the decision of Hon'ble Supreme Court in the case of Nizam Sugars, suppression of fact ground cannot be invoked again to demand service tax. We also obeerve that the department has not vbrought in any evidence to substantiate the allegation of su....
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....yment for any interest on the security deposit or depreciation thereof. the Contract and shall remain binding notwithstanding such variations, alterations or extension of time, as may be made, given concluded or agreed to between the Security Deposit against the contract shall be for the due and faithful performanceport Pvt. Ltd. otherwise. The Security Deposit furnished by the Contractor shall be shines conditions of the contract finall Blind Authorised Signatory Document 2 Sl. No. TENUGHAT VIDYUT NIGAM LIMITED HINOO, RANCHI Schedule of quantity & rate (Annexure-I) Item of Work Quantity Estimated rate Rs./M Amount (Rs.) 1. Evacuation of ash from ash pond of TTPS, Lalpania up to all possible lift required, loading by payloaders/ excavator washing the outside of dumpers truks as per specification on approved route and unloading at disposal site as directed by Engineer in charge. The rate includes cost of sprinkling of water at the excavation site, haulage route and disposal site, dozing of ash by dozers at the disposal site, including levelling the ground as per direction of Engineer in....
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....amounting Rs.4.12.500/- (Rupees Four lakhs twelve thousand five hundred) only to be deducted/ deposited shall consist in two parts. 5% performance security money amounting Rs. 2,06,250/- (Rupees Two Jakhs six thousand two hundred fifty) only should be deposited within 28 days of receipt of LOA after adjusting 1% Initial bidamest money already deposited by you in the form of Bank draft No. 380021 dl. 03.03.08 amounting Rs.42,000/- only. b) bills of the contract for the work done under the contract. Balance 5% security money will be recovered / deducted from running on alo company as security for the satisfactory execution and completion of the work in Whole money so deducted/deposited shall remain at the disposal of the accordance with the provision of the contract. 2 Paving Authority-Area Finance Manager (WS) CCWD, Kathara. For B.K.B.Transport PVC L Contd. P/2. Authorised Signatory Document 4 CENTRAL COALFIELDS LIMITED OFFICE OF THE PROJECT OFFICER JALAN PIH... COLLIERY Лед P.O..24 RANGRI Ref: PO/JRD/Rly.sg/ PF-D/954 Subject of Work NIT No. LOI No./Work Order No. Period of....