Custom, Excise & Service Tax Tribunal
Ranjit Buildcon Limited vs Ahmedabad-Ii on 26 November, 2024
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench at Ahmedabad
REGIONAL BENCH-COURT NO. 3
Service Tax Appeal No. 11060 of 2021 - DB
(Arising out of OIA-AHM-EXCUS-002-APP-004-2021-22 dated 27/04/2021 passed by
Commissioner of Central Excise, Customs and Service Tax-AHMEDABAD-II)
RANJIT BUILDCON LIMITED ........Appellant
Survey No. 170/1 (Part 1+2) Shed No. 03,
Panchal Udyog Nagar, Bhimpore, Daman,
The Dadra and Nagar Haveli and Daman Diu- 396210
VERSUS
COMMISSIONER OF C.E.-AHMEDABAD-II ......Respondent
Custom House... First Floor, Old High Court Road, Navrangpura, Ahmedabad, Gujarat-380009 APPEARANCE:
Shri Jigar Shah, Shri Amber Kumrawat, Advocate for the Appellant Shri Tara Prakash, Deputy Commissioner (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU Final Order No. 12839/2024 DATE OF HEARING: 14.11.2024 DATE OF DECISION: 26.11.2024 RAMESH NAIR The present appeal is filed by the Appellant against the Order in Appeal having number AHM-EXCUS-002-APP-004-2021-22 dated 27.04.2021 wherein the refund of service tax of Rs. 8,23,22,567/- for the period June 2005 to May 2007 has been rejected. The main issue to be decided in the present appeal is that whether the classification of services as claimed by the Appellant is accepted as falling within the definition of "mining services" or not.
1.1 Brief facts leading to the present appeal is that the Appellants were awarded two contracts having number 053289/0003J/RP/Cont.Mines/06 dated 14.09.2006 and contract number 53223 dated 07.12.2004 by Neyvelli Lignite Corporation Ltd. During the period in dispute the Appellants paid service tax under the category of "Site formation and clearance, excavation and earthmoving and demolition" services under protest. Subsequently when category of 'mining services' was specifically enacted in section 65(105)(zzzy) of the Act, the appellant started discharging the service tax under the said
2|Page ST/11060/2021 -DB category and found that the tax was not payable under the earlier entry of site formation. The Appellant was of the belief that their services as specifically falling within the taxable net only with effect from 01.06.2007 which is specific taxable entry considering their scope of work and therefore they were liable to pay service tax only with effect from 01.06.2007. The appellant also believed that the significant and predominant nature of activity involved in the contract was that of transportation of goods and that cannot be classified under earlier category and hence the tax was not required to be paid.
1.2 He further explains that the appellant has subsequently classified the services as "mining services" and discharged the service tax liabilities accordingly and which fact has been subjected to audit by the audit officers and accepted the classification and in support of which he relied upon the copy of the final audit report issued by the audit officers furnished in paper book.
The Appellant had filed various refund applications before the service tax authorities narrating the facts and claiming refund of service tax paid under the category of site formation and excavation, along with the copies of challans and relevant evidences, copies of which have been furnished in the paper book. All the refund applications filed by the Appellants were rejected by the jurisdiction authorities and thereafter the appellant preferred an appeal before the first appellate authority. Against the said order in appeal rejecting the refund claims, the appellant filed an appeal before this bench and which were decided by Final Order No. A/11021-11023/2019 dated 19.06.2019 and remanded back to the original adjudicating authority for reconsideration.
1.3 Pursuant to the remand of the case, jurisdictional authority re-examined the facts and again rejected the refund claims and also rejected the eligibility for interest on claims of refund and passed the order in original no GST- 06/Refund/07/AC/JRS/Ranjit/2020-21 dated 15.06.2020. Being aggrieved with the said order of rejection, the appellant preferred appeal before the first appellate authority vehemently arguing eligibility for refund as well as interest thereon, however they did not find favour. Being aggrieved with the said order passed by the Commissioner (Appeals) vide Order-In-Appeal No. AHM-EXCUS- 002-APP-004/2021-22 dated 11.05.2021 rejecting the appeal, the appellant has preferred an appeal before this Tribunal.
2. Shri Jigar Shah, Learned Counsel with Shri Amber Kumrawat, Advocate appearing on behalf of the appellant submitted the written submission in
3|Page ST/11060/2021 -DB support of their arguments and also submitted the paperbook containing inter alia the refund applications furnished to the lower authorities along with copies of contract, invoices, challans, and other relevant documents in support of their submissions.
3. Shri Tara Prakash, Learned Deputy Commissioner (Authorized Representative) of the Revenue department reiterates the findings in the order in appeal.
4. We have carefully considered the submissions made by both the sides and perused the records including the refund applications. We have also carefully perused the impugned order, more particularly para 7 to 10. We find that the impugned order merely relied upon the clarification issued by CBEC vide No. B1/6/2005-TRU dated 27-07-2005 and No. 23222/2/2006-CX.4 dated 12.11.2007. We find that as regard merit of the case the issue is whether the services provided by the appellant were classifiable under "mining services" defined in section 65(105(zzzy) of the Finance Act, 1994 and if that be so whether the services were liable to tax under site formation category prior to introduction of the "mining services" i.e. 01.06.2007. To decide the issue, it is imperative to see the scope of services provided by the Appellant. We refer to the 053289/0003J/RP/Cont.Mines/06 dated 14.09.2006 entered into by the Appellants with M/s. Neyvelli Lignite Corporation Ltd. for Barsingsar, Rajasthan, copy of which is supplied by the appellant in the paper book. We find that the contract is for "hiring of crawler mounted shovels / hydraulic excavators, backhoes, dumpers for the removal of all types of overburden materials in all kinds of strata, including its drilling, blasting, excavation, loading, transport and dumping, spreading, dozing at specified places for the exposure of lignite at Barsingsar Lignite Mine Project, Rajasthan". We also find from the contract that the price for the contract included cost of deployment of construction equipment, temporary works, for labour and establishment of labour camp, all materials and supplies, insurance, fuel, stores, appliances, security arrangements, safety and fire fighting arrangements and all such other materials / services and activities that may be necessary. We further find from the contract that the contract price is divided into rate for "Excavation loading etc" i.e. Rs. 11.35 per CM, "Transportation" i.e. Rs. 29.73 and "Others" i.e. Rs. 4.43 and accordingly the aggregate price is Rs. 45.51 per CM. Thus, the rate of excavation in the total price is 25% whereas rate of transportation, which is the major and substantial part comes to 65%. However, looking to the various terms and conditions
4|Page ST/11060/2021 -DB incorporated in the contract and the scope of the contract, we find that the contract is a composite turnkey project and thus it is not capable of being vivisected into parts for the purpose of taxation and that is the settled principle of fiscal law which requires no further elaboration. Since the contract is a turnkey project, it needs to be evaluated and interpreted in its totality and not individually for its components. Thus the classification of the entire project cannot be determined on the basis of one component i.e. excavation loading etc, which is minuscule as compared to total contract price. We also find that the major component of the contract is transportation which is almost 65% of the total contract price and if the contract has to partake the shape or colour only from its constituents it shall be the transportation activities and not the excavation. In case the entire contract shall be classified only as per its one of the activity, the entire bundle shall be given the treatment which is otherwise available to transportation activity. We find that the transportation activity as it involved in the contract before us was not liable to tax during the period involved since it is not resulting into services by way of Goods Transport Agency services since no consignment notes were to be issued, question of payment of service tax did not arise and thus the appellant is eligible to seek refund. However, we find that the true nature and colour of the contract is to be decided by looking at the contract in holistic manner and which is here to win the minerals from the mine and transport them to appropriate places.
4.1 We now refer to the definition of "site formation and clearance, excavation and earthmoving and demolition" defined in clause (97a) of section 65 of the Act which is as follows :-
"(97a) "site formation and clearance, excavation and earthmoving and demolition" includes, -
(i) drilling, boring and core extraction services for construction, geophysical, geological or similar purposes; or
(ii) soil stabilization; or
(iii) horizontal drilling for the passage of cables or drain pipes; or
(iv) land reclamation work; or
(v) contaminated top soil stripping work; or
(vi) demolition and wrecking of building, structure or road, but does not include such services provided in relation to agriculture, irrigation, watershed development and drilling, digging, repairing, renovating or restoring of water sources or water bodies;"
4.2 We also refer to the definition of taxable service given in section 65(105) as it concerns the above category which is as follows:-
5|Page ST/11060/2021 -DB "(zzza) to any person, by any other person, in relation to site formation and clearance, excavation and earthmoving and demolition and such other similar activities;"
From the above, it transpires that the site definition given in clause (97a) is a specific definition including six different situations which are independent and mutually exclusive of each other. First category is referring to services by way of drilling, boring and core extraction for construction, geophysical, geological or similar purposes. Since the activities involved in the contract in its holistic manner do not resemble to the activities specified in this first category nor the work involved in the contract is meant for construction, geophysical, geological or similar purposes, the services provided by the appellant do not fall within this first category. Second category is about soil stabilization which is also out of place for the contract on hand. Third category is horizontal drilling for passage of cables or drains or pipes which is not the case here. Fourth category is land reclamation work which is completely inapplicable here. Fifth category is stripping of contaminated top soil which is not the case since the overburden removed by the appellant is not that of contaminated soil but the minerals in themselves. Last category is respecting demolition, wrecking of building, structure or road which is obviously out of relevance to the contract in dispute. Thus, the services undertaken by the appellant under the contract do not fall within the ambit of "site formation and clearance, excavation and earthmoving and demolition" as defined under clause (zzza) of sub-section (105) of Section 65 of the Finance Act, 1994. While the definition provided in clause (97a) is inclusive in nature, it is well-established that an inclusive definition must be confined to activities that are ejusdem generis, or of the same class or nature as those explicitly enumerated within it. The phrase "such other similar activities" appearing in clause (zzza) must be interpreted in light of the doctrine of ejusdem generis, meaning that its scope is limited to activities of a similar character to those expressly mentioned, and cannot be broadened to encompass activities falling outside the defined class. It is a settled position of principles of legal interpretation that the first rule of interpretation of plain and literal interpretation has to be adhered to in fiscal laws. Accordingly, there is no room for intendment or addition to what is not forthcoming from plain language of statute. Language in clause (97a) and (zzza) is plain, unambiguous and clear and therefore nothing more can be added to expand scope of it. Regarding, the inclusive nature of clause (97a), which cannot be interpreted to indiscriminately extend its ambit to all conceivable activities. It is a settled principle of statutory interpretation that
6|Page ST/11060/2021 -DB while an inclusive definition permits the inclusion of additional items, its scope is inherently constrained by the class or category to which the defined terms pertain. This principle ensures that definitions are not expanded beyond their legislative intent to include activities of an entirely different nature.
Accordingly, the activities performed by the appellant under the said contract do not correspond to the specified activities or their class as contemplated under clause (97a). Consequently, they fall outside the purview of clause (zzza) as well.
4.3 Now we refer to the definition of taxable services i.e. mining service given in section 65(105)(zzzy) which was brought to effect from 01.06.2007 which reads as -
"to any person, by any other person in relation to mining of mineral, oil or gas".
4.4 This definition of taxable service is very wide and it encompass any service provider in relation to mining of mineral, oil or gas. Since the words mining was not defined in the Act, we find it appropriate to refer to the meaning ascribed to "mining operations" in the Mines and Minerals ( Development and Regulation) Act, 1957 which is in pari materia. Section 3(d) defines "mining operations" as "any operations undertaken for the purpose of wining any mineral". Term "minerals" is also defined in same Act in section 3(ad) by which it "includes all minerals except minerals oils". We also refer to the definition of "mine" given in section 2(j) the Mines Act, 1952 which read as follows :
"(j) "mine" means any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on and includes--
(i) all borings, bore holes, oil wells and accessory crude conditioning plants, including the pipe conveying mineral oil within the oilfields;
(ii) all shafts, in or adjacent to and belonging to a mine, whether in the course of being sunk or not;
(iii) all levels and inclined planes in the course of being driven;
(iv) all open cast workings;
7|Page ST/11060/2021 -DB
(v) all conveyors or aerial rope ways provided for the bringing into or removal from a mine of minerals or other articles or for the removal of refuse therefrom;
(vi) all adits, levels, planes, machinery, works, railways, tramways and sidings in or adjacent to and belonging to a mine;
(vii) all protective works being carried out in or adjacent to a mine;
(viii) all workshops and stores situated within the precincts of a mine and under the same management and used primarily for the purposes connected with that mine or a number of mines under the same management;
(ix) all power stations, transformer sub-stations, convertor stations, rectifier stations and accumulator storage stations for supplying electricity solely or mainly for the purpose of working the mine or a number of mines under the same management;
(x) any premises for the time being used for depositing sand or other material for use in a mine or for depositing refuse from a mine or in which any operations in connection with such sand, refuse or other material is being carried on, being premises exclusively occupied by the owner of the mine;
(xi) any premises in or adjacent to and belonging to a mine on which any process ancillary to the getting, dressing or preparation for sale of minerals or of coke is being carried on;"
4.5 We also refer to the definition of "minerals" given in section 2(jj) which means "all substances which can be obtained from the earth by mining, digging, drilling, dredging, hydraulicing, quarrying, or by any other operation and includes mineral oils (which in turn include natural gas and petroleum)". Examining the records in light of the given definition of "minerals", we find that the materials extracted from the mine be as overburden, are minerals. Further to it and by reading and interpreting meanings ascribed to the term "mine", we find as a fortiori that the activities undertaken by the appellant amounts to mining activity in a mine and therefore merits, without any hesitation and with legal backing, classification as mining activity. We also find from the records and findings of the lower authorities at all levels, that the revenue has not brought on record any contrary evidence to suggest that the activity undertaken by the appellant were not in 'mine' nor the same were in relation to 'mining'. It is obvious from the contract that the activity will result into extraction of overburden which is 'mineral' as per foregoing discussion and it will lead to extraction of 'lignite' which is also a 'mineral'. Thus, there existed no iota of doubt that the activity undertaken by the appellant was a mining activity.
8|Page ST/11060/2021 -DB 4.6. Furthermore, we find that the definition of taxable service with respect to mining given in section 65(105)(zzzy) encompasses all the services provided by one person to another "in relation to" mining. Having found that the contract is a mining activity as per the Mining Law, we are of the view that it clearly falls within the ambit of services in relation to mining. Furthermore and without prejudice, we also find that the activity which is though does not result into mining per se, but concerns or pertains to the act of mining shall also be deemed as mining services due to expression "in relation to" used in clause (zzzy). Hon'ble Supreme Court in case of Doypack Systems clearly laid down that the expression "in relation to" has wider connotation and it is synonymous to expression "pertaining to" or "concerning with". Relevant part of the decision is as under :-
"48. The expression "in relation to" (so also "pertaining to"), is a very broad expression which pre-supposes another subject matter. These are words of comprehensiveness which might both have a direct significance as well as an indirect significance depending on the context, see State Wakf Board v. Abdul Aziz (A.I.R. 1968 Madras 79, 81 paragraphs 8 and 10,following and approving Nitai Charan Bagchi v. Suresh Chandra Paul (66 C.W.N.
767), Shyam Lal v. M. Shayamlal (A.I.R. 1933 All. 649) and 76 Corpus Juris Secundum 621. Assuming that the investments in shares and in lands do not form part of the undertakings but are different subject matters, even then these would be brought within the purview of the vesting by reason of the above expressions. In this connection reference may be made to 76 Corpus Juris Secundum at pages 620 and 621 where it is stated that the term "relate"' is also defined as meaning to bring into association or connection with. It has been clearly mentioned that "relating to" has been held to be equivalent to or synonymous with as to "concerning with" and "pertaining to". The expression "pertaining to" is an expression of expansion and not of contraction."
Thus, we find from the facts involved in the said contract that the activities undertaken by the appellant amounted to mining activity ipso facto. Following the decision of Doypack Systems P Ltd supra we also find that the activity relates to the mining of lignite which is mining of mineral. Accordingly, the services provided by the appellant are falling in the scope of clause (zzzy) of sub-section (105) of section 65 of the Act.
4.7 We also find from the given facts and records that the appellant has started to classify their activities under mining services i.e. clause (zzzy) which fact is evident from the Service Tax returns for the year 2008-09 and 2009- 10 and accordingly discharged the service tax. We also find that the appellant has presented copy of final audit report issued by the department for the
9|Page ST/11060/2021 -DB period ended on 31.03.2009 wherein no objection has been raised with respect to classification as mining services. Thus, looking to the facts that the services were classified by the appellant as mining services and that classification was accepted by the revenue, contention of the appellant to classify them under the said category for the period involved in the dispute merits consideration.
4.8 Having found and decided that the services involved in the said contract were required to be classified under mining services defined in clause (zzzy) of sub-section (105) of section 65 of the Act, now we shall examine another argument placed by the appellant that the services which are covered under clause (zzzy) shall not be liable to tax prior to its enactment i.e. 01.06.2007. We find that the clause (zzzy) of sub-section (105) of section 65 of the Act was brought to taxability w.e.f. 01.06.2007. We also find that no changes were made in the other categories of taxable services as existed prior to 01.06.2007 while the new category was enacted by the parliament. Thus it is a necessary corollary to appreciate that what has been newly enacted by the parliament w.e.f. 01.06.2007 was not covered under any categories prior to such date. This principle has been categorically laid down by the Hon'ble Supreme Court in respect of works contract by way of decision in case of Commissioner v. Larsen & Toubro Ltd - 2015 (8) TMI 749 which is followed in case of Total Environment Building Systems Pvt Ltd v. DCCT - 2022 (8) TMI 168 by Hon'ble Apex Court and in case of N J Devani Builders P Ltd v. UOI - 2020 (11) TMI 798 by Hon'ble Gujarat High Court. Thus, we find no difficulty in following the same golden principle settled by the courts that the services are not liable to service tax prior to the date of enactment of particular entry to which they classify. Since, the services involved in the contract are found to be classifiable under clause (zzzy) of sub-section (105) of section 65, they shall not be liable to tax prior to date of its enactment i.e. 01.06.2007. We find that the similar view has been taken by this bench in case of Associated Soap Stone Distributing Company P Ltd v. CST - 2022 (3) TMI 511, relevant para is as follow :
"From the above judgment, it can be seen that in the appellant's own case similar activities were considered as 'Mining Service' therefore, the ratio of the above judgment directly applies in the facts of the present case also. The identical issue has been considered in the various judgments cited by the appellant as mentioned in above Para 2.1 wherein, similar view was taken by the Tribunal therefore, we can conveniently view that the issue is no longer res-integra. It is also pertinent to note that the appellant, on the same service, paid service tax under the category of 'Mining Service' with effect from 1.6.2007 and it is admitted fact that the revenue had accepted the 10 | P a g e ST/11060/2021 -DB classification of the same service under 'Mining Service'. It also strengthens the case of the appellant that the service provided by them is of 'Mining Service' and does not fall under the category of 'Site Formation and Clearance, Excavation and Earth Moving and Demolition Services'."
4.9 Similar stand has been taken by Kolkata Bench of this Tribunal in case of Saumya Mining Pvt Ltd v. CST - 2024 (7) TMI 753 and G. S. Atwal & Co Engineers Pvt Ltd v. CST - 2023 (6) TMI 310.
4.10 Regarding the issue of classification between clause (zzzy) or (zzza) in terms of section 65A, it is necessary to evaluate the position as it existed in the statute on or after 01.06.2007 since prior to that clause (zzzy) was not existing. Considering that position after 01.06.2007, we find that the clause (zzzy) lays down more specific entry of taxable service than the clause (zzza). As discussed before, site formation and excavation category relates to different activities namely construction, geological, geophysical, soil stabilisation, land reclamation, contaminated soil stripping etc, which all are belonging to different classes and thus it renders the clause (zzza) into very general description. Whereas, the clause (zzzy) specifically deals with single class of activities i.e. mining rendering it to be very specific nature. As per provisions of section 65A(2)(a), a sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description. Since clause (zzzy) provides most specific description as compared to clause (zzza) which find that the classification of mining service is most appropriate in terms of provisions of section 65A. Similar view has been taken by this Bench in case of Associated Soap Stone supra, relevant para is as follows: -
"From the above certificate issued by the Gujarat Minerals Development Corporation Ltd., who is the recipient of service in this case, makes it clear that the work of overburden/interburden removal is a part of mining during the course of mining therefore. The service is pre-dominantly related to mining. We find that even if, the contention of the revenue that the activities of the appellant taken independently is of 'Site Formation and Clearance, Excavation and Earth Moving and Demolition but at the same time, all these activities undertaken by the appellant is for the purpose of mining only. In this position, we find that if at all, there is a doubt about the particular service to be classified under one or more category the principle laid down for classification of taxable service under Section 65A need to be applied. The same is reproduced below:-
SECTION 65A. Classification of taxable services. (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clauses of clause (105) of section 65; 11 | P a g e ST/11060/2021 -DB (2) When for any reason, a taxable service is, prima facie, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows:
(a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description;
(b) composite services consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable;
(c) when a service cannot be classified in the manner specified in clause
(a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration."
From the above provision for classification of taxable service, it is provided that if taxable service is prima facie classified under two or more sub-clauses of clauses under Section 65, classification shall be effected on the basis of sub-clauses which provides the most specific description as compared to sub-clauses providing more general description. In the facts of the present case, it is undoubtedly clear that between appellant and the service recipient M/s. GMDC even though the nature of activity independently is of excavation and removal of soil but the objective of this activity is for mining only. In case of any mining activity, the activity of removal of over burden is inevitable. If the contention of the revenue is accepted then in case of all mining activities, the activity of excavation, removal of soil will go out of mining service which is not the intention of the legislature. Therefore, considering the above provision for classification of taxable service particularly in terms of Sub-section (1)(2a) of Section 65A as per the nature of the service in the present case, the removal of over burden which is exclusively meant for mining of lignite shall fall under the category of mining service only. ..."
In view of above, the activities of the appellant in the said contract are classifiable under the clause (zzzy) and not under any other entries of section 65(105) and since the clause (zzzy) has been introduced only from 01.06.2007, it is necessary to hold that the same was not taxable prior to such date.
4.11 For sake of abundant clarity and in order to avoid mis-carriage of justice to the respondent, we reinvite our attention to the price breakup given in the said contract, according to which the major constituent of the contract was transportation of goods. If the activity presumed to fall outside the scope of (zzzy) of sub-section (105) of section 65, it is necessary and inevitable to hold that the said services are classified as per its material and predominant constituent which is transportation of goods and not liable to service tax. Hence, going by that proposition advanced by the appellant in their claim, the activity was not resulting into taxable service and did not attract service tax. Since we have already explained the necessity to read the contract in its 12 | P a g e ST/11060/2021 -DB entirety and finding the 'mining service' to be more specific, appropriate and applicable category, we do not delve upon the classification of such services as transportation of goods.
4.12 In view of above and in light of material findings from the evidences that the services provided by the appellant under the said contract were not preparatory work to mining activities but they were carried out to win the minerals and constituted mining activities per se, we hold that the views expressed by Commissioner of Central GST (Appeals) in para 8 of the impugned order are incorrect and contrary to the statutory provisions. We also carefully referred to the circulars cited in impugned order, however in view of discussion and plain reading of law as it stood at the relevant time, we do not find any merit in the decision taken in the impugned and thus we hold that the services provided by the appellant under the said contract are in the nature of mining services so defined in clause (zzzy) of sub-section (105) of section 65 of the Act and not falling within the meaning of "Site formation and clearance, excavation and earthmoving and demolition" defined in clause (97a) of section 65 of the Act. We also hold by following the principles laid down by the Apex Court that the said services cannot be subjected to tax prior to 01.06.2007 and accordingly the appellant merits refund of amounts paid by them.
4.13 However, facts relating to the contract number 53223 dated 07.12.2004 are not verifiable since the appellant have neither supplied the copy of the contract nor the relevant invoices. All the issues involved in the present case are significantly and dominantly factual issues in nature and therefore careful examination of the facts emanating from contemporaneous evidences is indispensable before reaching to any conclusion otherwise that will be complete miscarriage of justice to the other side. Thus, in absence of relevant materials, we do not wish to interfere in the impugned order to the extent that related to the services provided by the appellant under contract number 53223.
4.16 We find from the records produced by the appellant in relation to the contract no. 053289/0003J/RP/Cont.Mines/06 dated 14.09.2006 and the refund applications, following position of refunds is found: -
13 | P a g e ST/11060/2021 -DB Total amount of refunds rejected by Rs. 8,23,22,567 impugned Order [A] Total amount of refunds pertaining to Rs. 6,65,65,701 Contract No. 053289/0003J/RP/Cont.Mines/06 dated 14.09.2006 out of [A] above [B] Total amount of refunds pertaining to period Rs. 4,60,77,978 upto 01.06.2007 out of [B] above [C] Total amount of refunds pertaining to period Rs. 2,04,87,723 from 01.06.2007 out of [B] above [D] Since, we have held that the services are classifiable under clause (zzzy) i.e. mining services, brought to taxability w.e.f. 01.06.2007, the amount denoted as [D] above i.e. Rs. 2,04,87,723 is not eligible whereas the amount denoted as [C] above i.e. Rs. 4,60,77,978 is found eligible in facts as well as law. Thus, we hold that the appellant is eligible for refund of Rs. 4,60,77,978.
4.17 We find from the facts and submissions made by the appellant, more particularly the invoices attached to the refund applications and certificate from the chartered accountant that the incidence of such tax was borne by them and therefore bar of unjust enrichment was not applicable. We also find that said documentary evidences were furnished by the appellant to the lower authorities and against which no plausible explanations or contemporaneous evidences have been brought on record by the revenue to inflict bar of unjust enrichment. Therefore, we hold that the appellant has crossed the bar of unjust enrichment since the burden of tax was borne by themselves.
4.18. Regarding the interest on refund prayed by the appellant we find that the adjudicating authority in order-in-original ordered to deny the interest on refund to the appellant. As held by us above, the Appellant is eligible for refund of Rs. 4,60,77,978 and since the interest is consequential in terms of Section 11BB of the Central Excise Act, 1944 we hold that the Appellant is eligible for interest on delayed payment of interest in terms of Section 11BB of the Central Excise Act, 1944 which is made applicable to service tax provisions vide Section 83 of the Finance Act, 1994, by following the decision of Supreme Court in case of Ranbaxy Laboratories Ltd v. UOI - 2011 (10) TMI 16, wherein it was held as under :-
14 | P a g e ST/11060/2021 -DB "15. In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made."
In view of above decision, which is followed by this bench in catena of decisions and the similar view taken by Hon'ble Gujarat High Court in case of UPL Limited v. UOI - 2021 (8) TMI 312, the appellant is entitled for interest from the expiry of 3 months from the date of original application filed for claim of refunds before the jurisdictional authority till the date of sanction.
5. In view of the above and our material finding from the facts and records that services provided by the appellant under contract are not preparatory work but they are mining activities per se, services provided prior to 01.06.2007 were not taxable and thus the impugned order is modified to that extent and the appellant is allowed refund of Rs. 4,60,77,978 with consequential relief of interest as per above. The appeal filed by the Appellants is partly allowed in the above terms.
(Pronounced in the open court on 26.11.2024) (RAMESH NAIR) MEMBER (JUDICIAL) (RAJU) MEMBER (TECHNICAL) Raksha