2009 (6) TMI 234 - AT - Service Tax

Business auxiliary service. The activities of the assessees/appellants are excavation/raising of factory grade Bauxite at the mines - Prima facie, the activities carried out by the applicants are relating to mining of minerals which prima facie has been brought into the ambit of service tax only with effect from 1-6-2007. The period in dispute in the present case is September 2005 to December 2006, that is, prior to 1-6-2007. CBEC Circular dated 12-11-2007 also clarifies that prior to 1-6-2007 activities such as excavation and earthmoving, transportation within mines are not subject to levy of service tax prior to 1-6-2007. - Applicants have made out a strong prima facie case for unconditional waiver. stay granted

Summary

Issues:
Waiver of pre-deposit of service tax under Sections 77, 76, and 78 of the Finance Act, 1994 for activities related to mining of minerals conducted prior to 1-6-2007.

Analysis:
The Appellate Tribunal CESTAT, Chennai, comprising Ms. Jyoti Balasundaram, Vice-President, and Shri P. Karthikeyan, Member (T), heard the application for waiver of pre-deposit of service tax amounting to Rs. 23,70,189/- along with interest and penalties. The demand of service tax was based on the contention that the appellants were providing business auxiliary services through activities like excavation, blasting, removal of overburden, and blending of Bauxite. The period in question was September 2005 to December 2006, before the service tax on mining activities came into effect on 1-6-2007. The Circular dated 12-11-2007 by CBEC clarified that activities such as excavation and mineral extraction were not subject to service tax before 1-6-2007 as they were considered part of mining operations. Notably, in a similar case involving VSS Engineering & Construction providing services to MALCO, the Commissioner (Appeals) had dropped the service tax demand, acknowledging that the activities constituted mining operations not liable to service tax before 1-6-2007.

The Tribunal found a strong prima facie case for unconditional waiver based on the nature of activities conducted by the appellants, which were akin to mining operations exempt from service tax before 1-6-2007. Citing the precedent set in the VSS Engineering & Construction case, where the demand for service tax was dropped, the Tribunal granted the prayer for waiving the pre-deposit of tax, interest, and penalties. Consequently, the Tribunal stayed the recovery of the disputed amounts pending the appeal, ensuring that the appellants were not required to make the pre-deposit during the appeal process. The decision was dictated and pronounced in open court, providing relief to the appellants regarding the service tax demand related to their mining activities conducted before the specified date of 1-6-2007.