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2016 (9) TMI 843 - AT - Service TaxDemand of service tax on advances received - works contracts - it was contended that these are payments received towards obtaining necessary equipment and creating basic facilities before the commencement of rendering of service. - Held that:- advances made cannot be subject to tax if such advances are adjusted against dues for rendering of service as that would amount to double taxation. - Decision in the case of Thermax Instrumentation Ltd v. Commissioner of Central Excise, Pune [2015 (12) TMI 1222 - CESTAT MUMBAI] followed - Decided in favor of assessee. Outstandings from associate concerns - it was contended that tax liability was being discharged upon receipt of dues as prescribed in the statute upto May 2008 - Held that:- Department was not in a position to convince us that these submissions were incorrect. Accordingly, we hold that the dues that were liable to be discharged by various payments made as claimed in the appeal and as recorded in the impugned orders on the respective heads. We are, therefore, left to examine in detail the submissions made in connection with the construction of railway sidings and the sinking of the mine shaft on which, admittedly, the appellant has not effected any payment of tax. Demand alongwith interest and penalties - work related to mines - Held that:- in the light of a subsequent entry to tax 'mining service' by section 65(105)(zzzy) of Finance Act, 1994 with effect from 1st June 2007 which was intended to cover all activities relating to mineral exploration and extraction under one head as a consolidation entry, the actual sinking of a shaft cannot be treated as 'site formation and clearance service' but as related to excavation of mineral from the mine. Consequently, we are in agreement with the appellant that the demand for the disputed period is not valid. Demand alongwith interest and penalties - construction of railway sidings - Held that:- it is noticed that the Railway Act, 1989 provides for railways with public investment and private investment and both function under the same statute. Such railways established in the private sector have a statutorily acknowledged Administrator. Consequently, we too hold that railway sidings built by the appellant fall within the exclusionary portion of section 65(25a) and are outside the ambit of taxation. Therefore, the liability to tax on the labour portion of work executed by the appellant and which has been duly discharged by them are confirmed. The demands under the other heads are set aside. Penalties are also set aside. - Appeals disposed of
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