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2014 (9) TMI 971 - AT - Service TaxWaiver of pre deposit - Site formation and clearances, excavation and earth moving or the demolition service - Held that:- The Service Tax demand is in respect of the service provided by the appellant in terms of three contracts entered into by them with M/s. Diamond Cement. The first contract of the appellant with M/s. Diamond Cement is for transportation of limestone from the screening plant at the mines to the factory premises of M/s. Diamond Cement. The limestone was to be loaded and transported by the appellant by using their own dump trucks and allied machinery and for these services, the appellant were to be paid @ ₹ 53.55 per M.T. of limestone delivered and besides this were also to be provided the diesel free of charge @ ₹ 0.9 per litre per M.T. of limestone delivered. - Prima facie, Activity of the appellant is GTA service and is not at all covered by the service of site formation and clearance covered under Section 65(105)(zzza) read with Section 65(97a) and therefore the Service Tax demand on the amount charged by the appellant for this service would not be sustainable. Activity of the appellant is basically giving various machinery and equipment to M/s. Diamond Cement on hire basis which is to be used by them for overburden removal and mining activities and, as such, this activity cannot be said to be the activity of site formation and clearance or mining. The supply of machinery and equipment on hire basis would be supply of tangible goods service which became taxable under Section 65(105)(zzzzj) which has been introduced in the Finance Act, 1994 w.e.f. 16-5-2008. In any case, the longer limitation period of 5 years under proviso to Section 73(1) of Finance Act, 1994 is not invokable as the dispute in this case is of interpretation. - appellant have strong prima facie case in their favour and, hence, the requirement of pre-deposit of the Service Tax demand, interest and penalty is waived for hearing of the appeal and recovery thereof is stayed. - Stay granted.
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