TMI Blog2013 (12) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Act, Railways are not covered under the construction service. Further as per the Indian Railway Act 1989, siding is a part of railway - applicant has taken the activity of sinking of shaft of mines much before the mining services became taxable. In view of the above facts and circumstances of the case, the pre-deposit of dues are waived and recovery of the same is stayed during the pendency of appeal - Prima facie case in favour of assessee - Stay granted. - ST/133/11-Mum. & ST/85305/13-Mum - Stay Order Nos. S/1279-1280/2013-WZB/C-I(CSTB) - Dated:- 2-9-2013 - S S Kang And P K Jain, JJ. For the Appellant : None For the Respondent : Shri P N Das, Commissioner (AR) PER : S S Kang Heard both sides. 2. Applicant filed thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was supplied on payment of appropriate vat/sales tax and this evidence is produced before the adjudicating authority. As the applicant had not paid any Central Excise duty at the time of clearance of goods or material, therefore the question of taking credit does not arise. The goods were supplied under different contracts on payment of appropriate vat/sales tax. The applicants made alternate plea before the adjudicating authority regarding the benefit of Notification No. 12/2003 and the adjudicating authority has taken this plea as main arguments and by denying the benefit of notification confirmed the demand. In these circumstances, the demands are not sustainable as the value of material supplied cannot be taken into consideration for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act. Hence the demand is not sustainable. 6. There is another demand of Rs.13,88,878/- which is confirmed on the ground that applicant liable to Service Tax under the taxing entry of site formation and Clearance, Excavation and Earth Moving service. The contention of applicant entered into an agreement for sinking of shafts and the same is essentially a pre-mining activity, and would be covered under Mining Services which became taxable from 1.6.2007 and activity of sinking of shafts is under taken much prior to that date. In view of this the contention is that the total demand is not sustainable. 7. Revenue relied upon the finding of lower authority and submitted that applicant failed to show that the goods or material supp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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