TMI Blog2013 (7) TMI 236X X X X Extracts X X X X X X X X Extracts X X X X ..... de Service Tax is not attracted in the facts of the case - The activities undertaken by the appellant was in the public domain - The charge against the appellant can at best be described as mis-interpretation of law - mis-interpretation is not a mis-statement or suppression of facts - imposition of penalty under Section 78 is not warranted – penalty set aside. CENVAT Credit - claim for CENVAT credit was never made before the adjudicating authority - the appellant is at liberty to substantiate their claim for eligibility to CENVAT Credit before the competent authority. - ST/262/09 - A/555/13/CSTB/C-I - Dated:- 16-4-2013 - P R Chandrasekharan And Anil Choudhary, JJ. For the Appellant : P.K.Sahu, Advocate For the Respondent : P.N. Das, Commissioner (AR) Per: P.R.Chandrasekharan The appeal is directed against Order-in-Original No. 03/KLG/TH-II/2009 dated 13.8.2009 passed by the Commissioner of Central Excise, Thane-II. 2. The appellant, M/s. Reliance Michigan (JV) (RM-JV in short) was awarded a contract by Mumbai Metropolitan Region Development Authority (MMRDA in short) in respect of a work titled as (i) Widening and Desilting of Mithi River from Mahim Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Klean Environmental Consultants Pvt. Ltd., Mithi River has been described as being used as a open drain by the citizens, who discharge raw sewage, industrial waste and garbage into it. In his letter dated 19.11.2007 written by the Hon'ble Chief Minister of Maharashtra to the Hon'ble Prime Minister, it is stated that Mithi River is a storm water drain. (c) Some 43 storm water drains in Mumbai flow into Mithi River and biggest tributary is called as Vakola Nalla. A River is defined as natural flowing body of water, but the fluid flowing in Mithi River is highly polluted and toxic. (d) The water bodies mentioned in the definition of dredging under Section 65(36a) covers river, port, harbor, backwater or estuary. Since Mithi River is a drain and not a river, the activity undertaken by the appellant is not taxable. The scope of work assigned to the appellant was not limited to desilting of the material from the water stream, but the appellant has also undertaken several activities under the contract as construction, microbiological treatment and transportation and dumping of material etc. and, therefore, the lump sum price given by MMRDA cannot be taken as a consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of domestic sewage, prevention of illegal oil processors and industrial manufacturing, and processing units, widening of river, control of pollution and prevention of illegal diversions of the river by the Airport Authority and MMRDA. Based on the suggestions made by the petitioner, the Hon'ble Bombay High Court with a view to redress the problem of pollution and degeneration of the Mithi River caused by a variety of reasons such as the discharge of industrial effluents, oil, domestic waste, dumping, diversions etc. and in order to put into motion a process for the revival and rejuvenation of the river, passed directions in the said petition. The Writ Petition was heard again on 3.12.2005 wherein an affidavit was filed on behalf of Maharashtra State Pollution Control Board, Mumbai and by the Under Secretary, Urban Development Department, Government of Maharashtra. As per the affidavit, the Government of Maharashtra has established a Mithi River Development and Protection Authority' pursuant to the Government Resolution dated 19 th August, 2005, mainly to channelize the Mithi river, remove and rehabilitate all activities adversely impacting the environmental conditions of Mithi ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been undertaken in respect of a river. 5.2 Section 65 (36a) defines Dredging as follows:- dredging includes removal of material including, silt, sediments, rocks, sand, refuse, debris, plant or animal matter in any excavating, cleaning, deepening, widening or lengthening, either permanently or temporarily, of any river, port, harbor, backwater or estuary. And the taxable service' is service rendered to any person by any other person in relation to dredging as per the provisions of Section 65 (105)(ZZZb) of the Finance Act, 1994. 5.3 From the contract awarded, it is clear that the work allotted is widening, deepening an desilting of Mithi River and, therefore, the activity undertaken by the appellant squarely falls within the definition of taxable service as defined under Section 65(36a) and accordingly, the Service Tax demand confirmed in the impugned order along with interest thereon is sustainable in law. 5.4 As regards the imposition of penalty, in the instant case, a penalty has been imposed under Section 77 for an amount of Rs.5000/- for non-compliance with the statutory provisions of Service Tax Rules, 1994. A penalty of Rs. 1 crore has been imposed under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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