Service Tax
TRT-2025-
Cestat Kolkata
Date:-06-06-23
In:-
Issue Favourable to Tax Payer ?:-
Order Date – 06 June 2023
Parties: M/s G. S. Atwal & Co. Engineers Pvt. Ltd. Vs Commissioner of Service Tax, Kolkata.
Facts –
- The Appellant, M/s G. S. Atwal & Co. Engineers Pvt. Ltd., provided ‘Mining Services’ to the service recipients during the period 16.08.2002 to 31.10.2006, but did not pay service tax on such activities and also did not take any service tax registration till 01.06.2007.
- A Show Cause Notice was issued dated 14.03.2007, demanding service tax for the period 16.08.2002 to 31.10.2006 on Cargo Handing Service, Business Auxiliary Service, Site Formation and Clearance, excavation and Earth Moving and Demolition services.
- The demand was confirmed along with penalty.
Issue –
- Whether service tax can be demanded on mining services?
Order –
- The Tribunal observed that from the work orders, it is evident that the activities were to be performed entirely within the mining area, for a lump sum price. The Department has artificially bifurcated the services under the categories of Cargo Handling Services, Site Formation services and Business Auxiliary Services and demanded service tax. In fact there is no separate charges payable to such services as per the work orders. Further, CBEC has issued Circular F. No. 232/2/2006-Cx.4 dated 12.11.2007, which categorically states that no service tax leviable on mining activities prior to 01.06.2007.
- Accordingly it was held that the artificial bifurcation of the services rendered by the Appellant into Cargo Handling Service, Site Formation Service and Business Auxiliary Service and demanding service tax in the impugned order is not sustainable and hence it is liable to be set aside.
- There is no evidence brought on record to establish that the Appellant has intentionally evaded service tax. Demand of service tax by invoking extended period is not sustainable. Accordingly, the demands confirmed in the impugned orders are liable to be set aside on the ground of limitation also.
- when the demand itself is not sustainable on merit as well as on limitation, the question of imposing penalty does not arise. The appeal is allowed.
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