2011 (4) TMI 571

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.... this application, the appellant seeks waiver of pre-deposit and stay of recovery in respect of service tax amount of Rs.91.23.081/- and higher amount of penalties. The demand is under the head 'dredging service' and for the period from 5.5.2006 to 31.7.2007. During the said period, the appellant had undertaken dredging of 'Mithi River' under a contract entered into with Mumbai Municipal Regional ....

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....'Mithi River' is just a drain. The learned counsel for the appellant submits that navigation is not possible in that stream of water and that it is just a conduit for effluent waters to the sea. The counsel has also referred to a study report dated 10.7.2004 submitted to the Maharashtra Pollution Control Board, which contains results of 'Mithi River' water analysis and also contains finding to the....

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....ed at the final hearing stage of the appeal. For the present, we consider the fact that the activity undertaken by the appellant in the aforesaid stream of water was 'dredging'. Their limited case is that the activity was undertaken in a drain and not in a river. WE note that even the agreement between the appellant and MMRDA describes the stream as 'Mithi River'. It cannot be called otherwise mer....

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..... 4. Prima facie, therefore, we consider 'Mithi River' to be a 'river' and the activities undertaken by the appellant herein to be dredging of river falling within the definition of this expression under section 65(36) of the Finance Act, 94. Consequently, prima facie, the appellant is liable to pay service tax. 5. The learned counsel has pointed out that, though the same activity was contin....