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Issues: (i) Whether the activity of site formation, excavation and earth moving was prima facie covered by works contract service for the purpose of complete waiver of pre-deposit; (ii) Whether the appellant was entitled to exemption under Notification No. 12/2003-ST in respect of the value of red mud sold.
Issue (i): Whether the activity of site formation, excavation and earth moving was prima facie covered by works contract service for the purpose of complete waiver of pre-deposit.
Analysis: The appellant had sought complete waiver on the footing that the activity was a works contract and that the taxable entry for works contract came into force only from 01.06.2007. On the material placed, the activity was found, prima facie, not to fall within works contract service.
Conclusion: The issue was answered against the assessee.
Issue (ii): Whether the appellant was entitled to exemption under Notification No. 12/2003-ST in respect of the value of red mud sold.
Analysis: The record indicated that the appellant had sold red mud and was entitled, at least prima facie, to the benefit of the exemption for the value attributable to such sale. This reduced the amount required to be secured by pre-deposit.
Conclusion: The issue was answered in favour of the assessee.
Final Conclusion: Complete waiver was declined, but partial relief was granted by limiting the pre-deposit to Rs. 5,00,000 and granting stay of recovery of the balance on compliance.
Ratio Decidendi: For interim relief, complete waiver will not be granted where the disputed activity is not prima facie covered by the claimed taxable category, but exemption for the value of goods sold may still justify partial waiver and stay.
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