Page 123 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] GLOBAL COAL & MINING PVT. LTD. v. COMMISSIONER OF SERVICE TAX, DELHI 81
6. The Principal Commissioner noted the observations made by the
Tribunal in Aryan Energy that the beneficiation of coal would be a part of mining
activity brought under the ambit of Service Tax w.e.f. 1 June, 2007 and such ac-
tivity would not be taxable prior to 1 June, 2007 and the fact that the two deci-
sions of the Tribunal in Spectrum Coal and Aryan Coal relied upon the decision
rendered by the Tribunal in Aryan Energy. The Principal Commissioner, howev-
er, observed that against the decision of the Tribunal in Aryan Coal, the Depart-
ment had filed an appeal in the Delhi High Court [CEAC 26/2013] which was
dismissed on 12 February, 2014 as non-maintainable and though the Department
had filed a Civil Appeal [Civil Appeal D 37840 of 2014] in the Supreme Court
which was dismissed on 13 May, 2015 on the ground of delay, but the question of
law was kept open. It would be appropriate, at this stage, to reproduce the ob-
servations made by the Principal Commissioner on the aforesaid judgment of the
Supreme Court and they are as follows :-
“After this, the department had filed a Civil Appeal D 37840 of 2014 before
the Supreme Court of India against the said judgment of the Tribunal. The
Apex Court had taken up the matter for hearing on 13-5-2015 and disposed of the
said Appeal by making the order in one line that “The appeal is dismissed on
the ground of delay. However, the question of law is kept open.”
“The order of the Apex Court is a non-speaking one which can only be termed as a
decision and not a judgment as has been deliberated by Board’s Circular No.
494/60/99-CX, dated 12-11-1999 and 897/17/2009-CX, dated 3-9-2009 in
similar cases reproduced below. Thus, it is clear that the judgment of Tribunal
is not final and also not approved by the Supreme Court because it is specifically
stated by the Court that the question of law is kept open. “
(emphasis supplied)
7. Thereafter, the Principal Commissioner referred to the Circular dated
12 November, 1999 issued by the Central Board of Excise and Customs. It is re-
produced :
“Circular No. 494/60/99-CX, dated 12-11-1999
[From F. No. 387/44/99-JC]

Government of India
Ministry of Finance (Department of Revenue)
Central Board of Excise & Customs

Subject :- Eligibility of Downtherm Heat Transfer medium & Tri-Ethylene Glycol
used for cleaning spinnerets to Notifn. Nos. 116/88-Cus./159/90-Cus.

A reference is invited to CEGAT Final Order No. C-II/2999/98/WRB, dat-
ed 28-12-1998 passed by West Regional Bench, Mumbai in the case of Reli-
ance Industries Ltd. v. Commissioner of Customs, Mumbai reported at 1999
(108) E.L.T. 236 (Tribunal). The brief issue involved in this case was wheth-
er Dowtherm Heat Transfer medium, required for heat transfer application
in the plant can be treated as “material” for manufacture of the Polyester
Staple Fibre/Polyester Filament yarn and entitled for duty exemption un-
der Notification No. 116/88-Cus., dated 29-3-1988 or 159/90-Cus., dated 30-
3-1990. Another issue was whether Tri-Ethylene Glycol (TEG) used for
cleaning spinnerets after manufacture of PSF/PFY and entitled for duty ex-
emption under Notification No. 116/88-Cus., dated 29-3-1988 and 159/90-
Cus., dated 30-3-1990. The CEGAT in its order mentioned above held both
the above items to be materials required for manufacture of resultant prod-
GST LAW TIMES  7th May 2020  123