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TMI Blog2018 (11) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... emands confirmed and penalties imposed while ST/1817/2010 is a departmental appeal challenging the non-imposition of penalty under section 77 of Finance Act, 1994. The appellant assessee constructed "Tailing Dams" and had undertaken desilting of Tailing Dam for their clients who recover iron ore which gets washed before being transported and sold. The Tailing Dams in question collect the washed water along with other debris and slime. This dam can take 10 lakh cu. Mt. Of iron ore slime. Revenue sought to charge from the appellant service tax under the head "Site Formation and Clearance, Excavation, Earthmoving and Demolition Services", on the ground that the appellant undertook the activity in open and excavated clearing it of jungle and re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o hold good for the remaining period and hence tax if any chargeable cannot be under the head of "site formation and Clearance, Excavation and Earth Moving and Demolition Services" under which the demand has been raised. Therefore the demands are liable to be set aside on this ground alone. As far as the service of desilting of Tailing Dam is concerned, he submits that even if these services were considered as "Site Formation and Clearance, Excavation, Earth Moving and Demolition Services", these services are related to repairing, renovating and restoring of water body clearly get excluded from the definition. The Dam in question is clearly water body although it may not store as much as a large multi purpose dam. Therefore, these services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt ar exigible to service tax. 4. We have considered the arguments on both sides and perused the records. The two services which are provided by the assessee appellant are - (a) construction of Tailing Dam for M/s Essar Steel and (b) desilting of a tailing dam for M/s NMDC. The first work involved both supply of material as well as provision of service. The services on this account are clearly not liable to Service Tax before 01.06.2007 in view of the Hon'ble Apex Court judgment in the case of Larsen & Toubro (supra). Therefore, the demand on this account needs to be set aside and we do so. As far as the services related to construction of Tailing Dam post 01.06.2008 are concerned, the demands are not made under the head "Works Contract Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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