AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 1211
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....e appellants are registered with service tax and provide some taxable services namely Cargo Handling Services, Work Contract Service, Supply of Tangible Goods Service, Mining of Mineral Oil or Gas Service, etc. During the course of audit and scrutiny of the records of the assessee, it was noticed that it had provided mining services to two of its clients namely M/s Hi-Tech Rock, Chennai and M/s Madhucon Projects Limited, Hyderabad and had not paid service tax on these taxable services. The Superintendent of the Central Excise sent letters and followed them up with reminders. The assessee asserted in its reply that it had not provided any Mining Service and under these contracts and it had only provided transportation service and since the freight for transportation did not exceed Rs. 1500/- per truck, it was exempted. Not agreeing with this assertion of the appellant, SCNs were issued which culminated in the impugned order. The contracts which the appellant had entered into with M/s Hi-Tech Rock and M/s Madhucon Projects Limited were examined in detail. 3. It showed that M/s Hi-Tech Rock and M/s Madhucon Projects Limited were awarded contracts for construction of roads by the co....
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....ant date - 25.07.2009 Extended Period 01.07.2009 to 31.12.2009 One year from the relevant date - 25.01.2010 Extended Period 01.01.2010 to 30.06.2010 One year from the relevant date - 25.07.2010 Extended Period 01.07.2010 to 31.12.2010 One year from the relevant date - 25.01.2011 Extended Period 01.01.2011 to 30.06.2011 One year from the relevant date - 25.07.2011 Extended Period 01.07.2011 to 31.12.2011 One year from the relevant date - 25.01.2012 Extended Period 01.01.2012 to 27.05.2012 One year from the relevant date - 25.07.2012 Extended Period 28.05.2012 to 30.06.2012 18 Months from the relevant date - 25.07.2012 Extended Period 01.07.2012 to 31.12.2012 18 Months from the relevant date - 25.01.2013 Extended Period 01.01.2013 to 30.06.2013 18 Months from the relevant date - 25.07.2013 Normal Period 01.07.2013 to 31.08.2013 18 Months from the relevant date - 25.01.2014 Normal Period 4. On behalf of the appellant, learned counsel made the following submissions :- (1) the appellant was awarded piece rate contracts by M/s Madhucon Projects Limited and Hi-Tech Rock Products for th....
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....appellant as it had reasonable cause for failure. 5. On behalf of the Revenue, learned authorized representative made the following submissions:- (1) the appellant‟s contention that it was manufacturing goods and, therefore, it was not liable to pay service tax is not correct. Excavation of stones from the mine or the quarry and further reducing their size does not amount to manufacture as has been held by the Supreme Court in the case of Aman Marble Industries Pvt. Ltd. versus Collector of Central Excise, Jaipur 2003 (157) E.L.T. 393 (S.C.). The relevant extract of the judgment is as follows :- "4. In Rajasthan State Electricity Board versus Associated Stone Industries and Anr. - JT 2000 (6) SC 522 such a question fell for consideration before this Court although in a different context, and this Court held as follows : "...This a part excavation of stones from a mine and thereafter cutting them and polishing them into slabs did not amount to manufacture of goods. The word "manufacture" generally and in the ordinary parlance in the absence of its definition in the Act should be understood to mean bringing to existence a new and different article ....
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....d the submissions on both sides and perused the records. 7. Before examining the merits of the case, we proceed to examine the question of invoking extended period of limitation. As per section 73 of the Act, demand of service tax not paid or short paid can be raised only within the normal period of limitation. However, extended period of limitation can be invoked, if the non-payment or short payment of service tax is on account of fraud or collusion or willful statement or suppression of facts or violation of the provisions of the Act or Rules with an intent to evade payment of service tax. Evidently, fraud, collusion and willful statement have an in-built element of mens-rea. Without the intent being established, these cannot be alleged. As far as the suppression of facts is concerned, it has been held in a series of judicial pronouncements that since the words suppression is used along with words, such as, fraud, collusion and willful statement mere omission cannot be called suppression and intent has to be established. It has now well settled position of law. In Pushpam Pharmaceuticals, the Supreme Court held as follows :- "4. Section 11A empowers the Department to ....
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.... "7. whereas it appeared that the assessee never disclosed the fact to the department that they were providing Mining Services to M/s Madhucon Projects Limited, Hyderabad and not discharging service tax liability on this account. The assessee did not furnish the correct taxable value and service tax payable thereon in the ST-3 returns filed by them for the respective period and made falls declaration on Sl. No. 7 of the ST-3 returns pertaining to self-assessment memorandum regarding furnishing correct particulars in the returns as per the records and books maintained and also made falls declaration about payment of service tax correctly. Thus it appears that the assessee had suppressed this fact from the department by not showing the taxable value of Rs. 9,13,40,512/- in ST-3 return for the relevant period with intend to evade the payment of service tax under mining service. The said evasion was only notice during the course of thorough scrutiny of the records of the assessee by internal audit. Had the audit not pointed out this fact, the assessee could have exclusively evade payment of the said amount of service tax. Therefore, extended period as provided under section 73 (1....
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....egime. We, therefore, now proceed to examine of provisions under which the appellant was put to notice in the two SCNs. 12. In the SCN dated 02.05.2014, the decision of the meeting of the Regional Advisory Committee held on 07.05.2014 circulated by letter dated 20.05.2014 was referred to and the demand was made under Mining Service as per section 65 (105) (zzy) of the Act. No reference whatsoever has been made to the legal provisions applicable in the post-negative list period, relevant for the period. Likewise, in the SCN dated 16.10.2015 also the demand was made on the services rendered by the appellant to M/s Madhucon Projects Limited under the head "Mining Services". No reference is made to the provisions of the post-negative list period. 13. In the impugned order, the Commissioner held that the services were liable to service tax under section 66B for the period after 01.07.2012 for the reason that they were not specified in the negative list nor were there any exemption notification. Paragraph 47.3 of the impugned order is reproduced below :- "47.3 I also find that with effect from 01.07.2012, the regime of negative list of services has been introduced. In this....