Commissioner Of Central Excise And Service Tax, Jabalpur vs KSK STC GKT Joint Venture Firm

Dr. Rachna Gupta, J

None is present for the appellant today. Vide the order dated 23.01.2024 last opportunity was given to the Respondent to appear today with the clarification that in case absence of the Respondent today, the matter shall be heard on merits and shall be disposed off. Accordingly, further adjournment awaiting respondent’s presence is dispensed with. Ex-parte arguments on behalf of the Department, heard. Written synopsis has also been placed on record.

We observed that the department has filed the impugned appeal to assail the Order-in-Appeal No. 634-17-18 dated 29.01.2018. The said order has culminated out of the show cause notice No. 24/JC/ST/JBP/2016-17 dated 19.12.2016 vide which the service tax amounting to Rs. 79,54,892/- was proposed to be recovered alongwith interest and the proportionate penalties were proposed to be imposed. It was alleged that the activity rendered by the respondent i.e. by hiring pay loader and tipper/dumper for loading is covered under the category of ‘Mining Services’. The proposal have been rejected by the adjudicating authority below vide order-in-appeal as mentioned above. Being aggrieved, the appellant is before this Tribunal.

Learned Authorized Representative has mentioned that the mining services were made taxable under Section 65 (105) (zzzy) w.e.f. 01.06.2007. As per work orders awarded, the respondent-assessee is providing handling (loading/unloading) of coal and transportation from bunkers of Nehariya UGM to EDC sidings including unloaded. Hence, the activities were rightly proposed to be covered under the mining services. The services being provided at mines are liable to tax, hence, the proposed demand has wrongly been set-aside.

Decision in the case of Commissioner of Central Excise, Salem vs. M/s Thriveni Earth Movers Private Limited reported as 2015-TIOL-1960-HC-MAD-ST has been relied upon alongwith the Circular issued by CBEC dated 12.11.2007 wherein the services of handling and transportation of coal/minerals from pit-head to outside the mines was clarified to be the part of mining activity.

Having heard the department and perusing the record of impugned appeal, we observe and hold as follows:-

The original adjudicating authority has relied upon the decision of this Tribunal in the case of R. K. Transport Company vs. Commissioner of Central Excise reported as 2012 (27) STR 496 (Tri.-Del.) and has also relied upon the decision of Hon’ble Supreme Court in the case of Commissioner of Central Excise & Service Tax vs. Singh Transporters reported as 2017 TIOL 249 (S.C.).

The findings of Bombay High Court in the case of Indian National Shipowners Association vs. Union of India reported in 2009 (14) STR 289 (Bom.) have also been quoted by the Adjudicating Authority and it has been held that the transportation of coal as performed by the Assessee herein on tippers/trucks upto siding has no direct/indirect nor any proximate relation with the mining of coal (mining activity).

It has also been held in the order under challenge that the controversy regarding whether the coal transported pit heads (mines) to the Railway siding has been put to rest by the decision dated 07.07.2017 of Hon’ble Supreme Court in the case of Singh Transporters (supra) case 2017 TIOL 249 (S.C.). Based on these decisions, the demand as was proposed in the show cause notice was set-aside. The said order has been upheld vide the order under challenge i.e Order-in-Appeal No. 505/2018 dated 29.01.2018.

We hold that the issue is no more res-integra, the authorities have rightly followed the judicial discipline while applying the ratio of the Hon’ble Supreme Court’s decision in Singh Transporters (supra) case. Hence, we do not find any infirmity in the order under challenge.

We observe that the decision and the Circular as relied upon by the appellant pertain to the period prior the decision of the Hon’ble Supreme Court in the case of Singh Transporters (supra) case, it has rightly been held by the adjudicating authorities below that the controversy in question has been put at rest by the said decision wherein the transportation of mine goods from the mines to Railway siding is denied to be the part of the mining services.

In the light of the above discussion, the order under challenge is hereby upheld. Consequent thereto the appeal filed by the department is dismissed.