Custom, Excise & Service Tax Tribunal
M/S. Thirumala Enterprises vs Commissioner Of Central Excise, Salem on 6 November, 2017
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH, CHENNAI
ST/190/2009
(Arising out of Order-in-Appeal No. 206/2008 (SLM) ST dated 19.12.2008 passed by the Commissioner of Central Excise (Appeals), Salem)
M/s. Thirumala Enterprises Appellant
Vs.
Commissioner of Central Excise, Salem Respondent
Appearance Ms. Minchu Mariam Punnoose, Advocate for the Appellant Shri K.P. Muralidharan, AC (AR) for the Respondent CORAM Honble Ms. Sulekha Beevi C.S., Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing / Decision: 06.11.2017 Final Order No. 42686 / 2017 Per Bench The facts of the case are that M/s. Thirumala Enterprises, the appellants herein, had entered into an agreement with M/s. MALCO to carry out mining services, namely, excavation / raising of factory grade bauxite by doing drilling, deep hole blasting, removal of overburden, breaking of larger boulders to the required size, blending of bauxite, loading of the blended bauxite into trucks, maintenance of approach roads, screening of silica rich bauxite, maintenance of garland rains and silt dam etc. Department took the view that these activities would fall within the fold of business auxiliary service and in proceedings initiated against the appellant, confirmed the tax liability of Rs.23,70,189/- with interest thereof and imposition of penalties against them, which was upheld by the Commissioner (Appeals). Hence this appeal.
2. Today, when the matter came up for hearing, ld. counsel Ms. Minchu Mariam Punnoose submits that the matter is no longer res integra. She submits that the Tribunal in the case of Thiriveni Earthmovers Pvt. Ltd. Vs. Commissioner of Central Excise, Salem 2009 (15) STR 393 (Tri. Chennai) had held that activity of loading and transportation of limestone and rejects from mine head to crushing premises under taken within mining area and covered by Mines Act, 1952 would not be taxable under Business Auxiliary Service. The appeal against the said decision was dismissed by the Honble Supreme court as reported in 2016 (45) STR J142 (SC). She also placed reliance Tribunals decisions which are as follows:-
(a) Commissioner of Central Excise, Salem Vs. Thriveni Earthmovers Pvt. Ltd. Final Order No. 41609 to 41612/2017 dated 7.8.2017
(b) Commissioner of Central Excise, Salem Vs. R. Suresh Kumar & Anr. Final Order No. 42314 & 42315/2017 dated 26.9.2017.
She submits that the very same services was again held as falling under mining services in the judgment of the Honble High Court of Chattisgarh in Union of India Vs. M/s. Spectrum Coal Power Ltd. 2016 (41) STR 592 (Chattisgarh).
3. On the other hand, ld. AR Shri K.P. Muralidharan reiterated the findings in the impugned order.
4. Heard both sides.
5. We find that the issue is squarely covered by the ratio of the Tribunals decisions and High Court /Supreme Court judgments relied upon by the ld. counsel. This being so, we find that the impugned order upholding the levy of service tax as business auxiliary services cannot then be sustained and will have to be set aside which we hereby do. The appeal is therefore allowed with consequential relief, if any, as per law.
(Dictated and pronounced in open court)
(Madhu Mohan Damodhar) (Sulekha Beevi C.S.)
Member (Technical) Member (Judicial)
Rex
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