2009 (6) TMI 878 - AT - Service Tax

Summary

Issues involved: Application for waiver of pre-deposit of Service Tax amount and penalties u/s 35F of the Central Excise Act, 1944.

The judgment pertains to an Application for waiver of pre-deposit of Service Tax amount and penalties. The Applicant contended that they are engaged in mining of iron ore, with site formation being incidental to mining. The Tribunal noted that the mining service became taxable from 1-6-2007, and the Applicant was paying Service Tax as a provider of mining service. The Tribunal referred to a previous decision and held that prior to 1-6-2007, mining service was not covered under the scope of Service Tax. Consequently, the Tribunal found that the Applicant had a strong case, and thus waived the pre-deposit of the Service Tax amount, staying its recovery during the pending appeal. The Stay Petition was allowed.

In the case, the Applicant relied on a contract dated 1-4-2005 for mining, raising, and transporting of iron ore to support their contention that site formation was incidental to mining. The Revenue, on the other hand, argued that the Applicant was also undertaking site formation and therefore liable for Service Tax. The Tribunal observed that the contract primarily involved mining of iron ore, which became taxable under Service Tax from 1-6-2007. Given that the Applicant was paying Service Tax as a mining service provider and the Revenue was accepting it, the Tribunal found in favor of the Applicant. Additionally, the Tribunal referred to a previous decision to support its conclusion that prior to 1-6-2007, mining service was not subject to Service Tax. As a result, the Tribunal waived the pre-deposit of the Service Tax amount and stayed its recovery during the appeal process, ultimately allowing the Stay Petition.