2008 (7) TMI 306 - AT - Service Tax

Demand confirmed on the ground that applicants were providing services in relation to site formation and clearance which includes excavation, and earth moving and such other activities contention that contract is for mining and other connected activities on which tax is demanded is in relation to mining - as the contract also includes removal of OB/waste rock or secondary ore etc. which is in relation to site formation, therefore, prima facie, not a fit case for total waiver of pre-deposit

Summary

Issues: Application for waiver of pre-deposit of duty and penalty due to service tax demand on activities related to site formation and clearance, including excavation and earth moving.

In this case, the applicants filed an application seeking waiver of pre-deposit of duty amounting to Rs. 84,85,513/- and penalty imposed due to the demand for service tax. The demand was upheld on the basis that the applicants were engaged in providing services related to site formation, including excavation and earth moving. The applicants argued that their contract with Rajasthan State Mines & Minerals Ltd. was primarily for mining rock phosphate, which became taxable under service tax laws from 1-6-2007. They contended that the contract encompassed both mining and related activities such as removal of overburden (OB) and waste rock, which should not be treated as separate taxable activities. The Revenue, on the other hand, asserted that the service tax demand was not related to mining but to the removal of OB/waste rock or secondary ore, as evidenced by the contract terms specifying rates for such activities. The applicants also mentioned entering into other agreements for similar activities and paying service tax for site formation under protest, highlighting the lack of findings on the extended period in the adjudication order.

Upon reviewing the contract terms, which included provisions for removal of OB/waste rock or secondary ore related to site formation, the Tribunal found that a total waiver of pre-deposit of service tax was not warranted. The Tribunal directed the applicants to deposit Rs. 10 lakhs within 8 weeks, after which the pre-deposit of the remaining service tax amount and penalty would be waived. The case was adjourned for compliance reporting on 8th October 2008. The decision emphasized the prima facie nature of the case, indicating that the applicants were liable to pay service tax for activities related to site formation, despite the mining component in the contract.