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Activity of mineral extraction, classification issue — Whether mining service or site formation and clearance service — Activity of site formation, etc. incidental to contract of mining undertaken — Activity not taxable under site formation and clearance service during relevant period i.e., prior to introduction of mining service w.e.f. 1-6-2007.
Refund — Whether tax paid on self-assessment is refundable — Self-assessment cannot be considered as assessment made by officer u/s. 73 of the Finance Act — Assessee justified in filing refund claim.
Facts:
The respondents being engaged in providing services of mining to their clients/principals got themselves registered under the category of ‘site formation and clearance, excavation and earthmoving and demolition’ service and accordingly paid service tax under the said category for the period 16-6-2005 and 30-9-2006. Pursuant to the introduction of separate service under the category of mining service w.e.f. 1-6-2007, they filed a refund claim for an amount of Rs.1,58,11,007 on the ground that their service would fall under the new category. The Revenue contended that the contract entered by the respondents with the principals indicated that the services were of excavation, drilling and demolition services. Moreover, the respondents having discharged the service tax liability on self-assessment could not file a refund claim. The respondents contended that the removal of overburdens and excavation of ore undertaken as per the contract would clearly fall under the category of mining services and was liable to be taxed accordingly. Further that the self-assessment would not amount to assessment done by an officer and hence there was no restriction for claiming the refund.
Held:
Relying on the High Court judgment in the case of Central Office Mewar Palaces Org. v. UOI, [2008 (12) STR 545 (Raj.)], the respondents were held to be entitled to the refund claim. Appeal of the Revenue was rejected.
