2013 (5) TMI 144 - AT - Service Tax

Site Formation and Clearance Service & Mining Service - demand confirmed towards service tax and education cesses - period up to 31.05.2007 & from 01.06.2007 to 31.12.2008 respectively - Held that - As for the period prior to 01.06.2007, the activity in question cannot be considered as Site Formation and Clearance . Similar activity is admittedly classifiable under the head Mining Services for the period from 01.06.2007 (the date on which this service became taxable). As the appellant has paid a major part of the demand for this period waiver of pre-deposit and stay of recovery in respect of the balance amount of service tax and education cesses, interest thereon and penalties awarded.

Issues:
1. Appellant seeks waiver and stay in respect of adjudged dues for service tax and education cesses.
2. Classification of the appellant's activity as 'Site Formation and Clearance Service' or 'Mining Service'.
3. Appropriation of the amount paid towards the demand for the period from 01.06.2007.
4. Granting waiver of pre-deposit and stay of recovery for the balance amount of service tax, education cesses, interest, and penalties.

Analysis:
1. The appellant filed an application seeking waiver and stay in relation to the adjudged dues for service tax and education cesses. The main grievance of the appellant was against the demand of Rs. 12,57,817/- for the period up to 31.05.2007 under 'Site Formation and Clearance Service' and Rs. 9,73,507 for the period from 01.06.2007 to 31.12.2008 under 'Mining Service'. The Commissioner (Appeals) observed the activity as 'Mining Service' but the appellate authority differed, stating that the activity before 01.06.2007 could be charged under 'Site Formation and Clearance Services'. The appellant had paid a significant amount towards the demand for the period from 01.06.2007, and the Tribunal was inclined to grant waiver and stay for the balance amount of service tax, education cesses, interest, and penalties.

2. Upon considering the submissions, the Tribunal opined that the activity before 01.06.2007 could not be categorized as 'Site Formation and Clearance' but rather as 'Mining Services'. The activity post 01.06.2007 was classifiable under 'Mining Services' as per the taxable service. Given that a substantial part of the demand for the latter period had been paid by the appellant, the Tribunal decided to grant waiver of pre-deposit and stay of recovery for the outstanding amount of service tax, education cesses, interest, and penalties.

3. The appellant had paid an amount of Rs. 7,26,591/- towards the demand for the period from 01.06.2007, which was appropriated by the adjudicating authority. Additionally, a further deposit of over Rs. 2 lakhs was claimed by the appellant, but it could not be linked to any specific part of the impugned tax demand. The Tribunal considered these payments and the nature of the appellant's activity before and after 01.06.2007 in determining the waiver and stay of recovery for the outstanding dues.

4. The Tribunal ordered the waiver of pre-deposit and stay of recovery for the balance amount of service tax, education cesses, interest, and penalties, considering the classification of the appellant's activity and the payments made towards the demand for the relevant periods. The miscellaneous applications would be reviewed along with the appeal in due course, ensuring a comprehensive assessment of the entire matter.

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