2011 (4) TMI 571 - AT - Service Tax

Waiver of pre-deposit - Dredging service - Whether Mithi River is a river or not - Prima facie, consider Mithi River to be a river and the activities undertaken by the appellant herein to be dredging of river falling within the definition of this expression under section 65(36) of the Finance Act, 94. Consequently, prima facie, the appellant is liable to pay service tax - stay granted partly.

Summary

Issues:
1. Whether dredging of 'Mithi River' qualifies as a taxable service under the Finance Act, 1994.

Analysis:
1. The appellant sought waiver of pre-deposit and stay of recovery for service tax and penalties related to dredging services provided to Mumbai Municipal Regional Development Authority (MMRDA) from 5.5.2006 to 31.7.2007. The appellant argued that 'Mithi River' is not a river but a stormwater drain, making dredging non-taxable under the Finance Act, 1994. The appellant presented evidence, including maps and reports, to support this claim. However, the JCDR contended that 'Mithi River' was always considered a river, as even the tender notice from MMRDA referred to it as such.

2. The tribunal acknowledged that determining whether 'Mithi River' qualifies as a river is a factual issue to be resolved at the final hearing. However, based on the available information, including the agreement between the appellant and MMRDA referring to it as 'Mithi River,' the tribunal prima facie considered it to be a river. The tribunal noted that the stream connects Vihar and Powai lakes to the Arabian Sea, indicating characteristics of a river rather than a mere drain.

3. Despite the appellant's argument and evidence, the tribunal found 'Mithi River' to be a river and the appellant's activities as dredging of a river, falling within the definition under the Finance Act, 1994. The tribunal also considered the lack of demand for service tax on a sister-concern of the appellant undertaking similar activities in 'Mithi River' post-31.3.2007. Consequently, the tribunal directed the appellant to pre-deposit a specified amount within a set timeline.

In conclusion, the tribunal's decision centered on the classification of 'Mithi River' as a river rather than a drain, leading to the prima facie determination that the appellant's dredging activities were taxable under the Finance Act, 1994.