2018 (8) TMI 1742 – CESTAT DELHI – TMI – Classification of Services – the appellant provides the activities of bringing down the sizes of the mined coal into certain specific sizes – whether the said activity would be classified under Business Auxiliary Services or not? – Held that:- There is no service involved in the facts of the matter – The appellant offering the cut to size coal to its customer, is like offering his coal in various forms and sizes to its customers hence if cutting the coal to various sizes is a service then we feel it is a service to himself and not to the buyer because buyer is being charged on per tonnage basis as per coals forms and sizes – appeal allowed – decided in favor of appellant. – Service Tax Appeals No. 5
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The Department interpreted that such activities provided by the appellant should fall under the taxable category of Business Auxiliary Service‟. Accordingly, after adjudication of the matter, the adjudged demands were confirmed on the appellant. 2. We have heard both sides and perused the record of appeal. 3. We feel that there is no service involved in the facts of the matter. Considering the facts of matter we feel that the appellant offering the cut to size coal to its customer, is like offering his coal in various forms and sizes to its customers hence if cutting the coal to various sizes is a service then we feel it is a service to himself and not to the buyer because buyer is being charged on per tonnage basis as per coals forms
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s auxiliary service as per Section 65 (19) of the Finance Act, 1994. But by the impugned order, the Commissioner dropped the demand. Being aggrieved, the Department has filed the present appeal. 3. With this background, we heard Shri K. Chowdhury and Shri Rajiv Agarwal , Ld. Counsels for the parties. 4. After hearing both the parties it appears that the appellants had paid the sales tax/vat and total amount of sale includes crushing charges as well as other charges e.g. silo loading charges and the same was shown in the profit and loss account. The Honble Supreme Court in the case of Bharat Sanchar Nigam Ltd. Vs. UOI reported in 2006 (2) STR 161 (SC) observed that sales tax and service tax cannot be made applicable on the same transaction a
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