Page 125 - GSTL_7th May 2020_Vol 36_Part 1

2020 ] GLOBAL COAL & MINING PVT. LTD. v. COMMISSIONER OF SERVICE TAX, DELHI 83
9. The Principal Commissioner, thereafter, concluded as follows :
“Thus, it is safely concluded in the case of Commissioner of Service Tax, New
Delhi v. M/s. Aryan Coal Beneficiations Pvt. Ltd. as disposed of by the Apex
Court, the judgment of Tribunal reported in 2013 (29) S.T.R. 74 (Tri. - Del.)
does not find any approval by the Supreme Court in its order dated 13-5-
2015 because it is only a decision and not a judgment, and also at the same
time the order of the Tribunal cannot be treated as merged with the order of
the Supreme Court. It, therefore, is crystal clear that the matter in dispute is
still open and has not attained any finality yet. Thus, for the reasons as above, I
reach at the conclusion that the ratio of the case i.e. Aryan Coal Beneficiations Pvt.
Ltd. v. CST, New Delhi - 2013 (29) S.T.R. 74 (Tri. - Del.) cited by the party, in
which earlier two cases were also followed need not to be taken up for any discus-
sion in the instant case as it becomes irrelevant since the judgment of Tribunal is in
jeopardy and the question of law is still open.
(emphasis supplied)
10. The Principal Commissioner, therefore, held as follows :-
(i) Service Tax amounting to Rs. 7,27,31,082/- (Seven Crores Twenty
seven Lacs thirty one thousand eighty two only including Educa-
tion Cess & Secondary & Higher Education Cess) is recoverable
from the party under Section 73(1) of the Finance Act, 1994. An
amount of Rs. 22,312/- already deposited stands appropriated to-
wards payment of Service Tax;
(ii) Interest on the Service Tax recoverable as above is liable to be paid
by them under Section 75 of the Act ibid.
(iii) Penalty in terms of Section 76 of the Finance Act, 1994, is imposable
on them.
(iv) Penalty in terms of Section 77 of the Finance Act, 1994 is imposable
upon them for failure to observe the statutory responsibilities.
(v) Penalty in terms of Section 78 of the Finance Act, 1994, is imposable
on them.
11. Shri B.L. Narasimhan, Learned Counsel for the appellant submitted
that the activities of the appellant cannot be classified under BAS prior to 1 June,
2007 as the activity, being a service in relation to mining, was made taxable only
from 1 June, 2007. Thus, the confirmation of demand prior to 1 June, 2007 under
BAS is liable to be set aside. Learned Counsel also submitted when a new catego-
ry of service is introduced without any amendment/change in the existing en-
tries, the service covered under such a new category cannot be taxed under any
of the earlier existing categories. Learned Counsel pointed out that as the service
‘in relation to mining’ under Section 65(105)(zzzy) of the Act was made taxable
from 1 June, 2007, the appellant has been paying Service Tax on this activity and
that the Principal Commissioner was not justified in ignoring the binding deci-
sions of the Tribunal in Aryan Energy, Aryan Coal and Spectrum Coal. The submis-
sion is that the Principal Commissioner committed judicial impropriety in not
following the binding decisions and this would be against judicial discipline as
was observed by the Supreme Court in Union of India v. Kamlakshi Finance Corpo-
ration Ltd. [1991 (55) E.L.T. 433 (S.C.)]. Learned Counsel also submitted that in
any case, reimbursement amount cannot be included in the value of services and
the extended period of limitation could also not have been invoked.
12. Shri Vivek Pandey, Learned Authorized Representative of the De-
partment, however, supported the impugned order and submitted that the activ-
ity conducted by the appellant prior to 1 June, 2007 would fall under BAS.
GST LAW TIMES  7th May 2020  125