The question whether ‘Mithi River’ is a river or not, is a pure question of fact which needs to be examined and settled 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 merely by reason of the fact that rainwater or domestic sewage from the surrounding areas are also flowing into it or that industrial effluents are discharged into it. After all, even popular rivers in the country suffer from these problems. Prima facie, ‘Mithi River’ cannot be called otherwise for any of the reasons stated by the appellant or their counsel. We have also seen a map produced by the appellant which indicates that Vihar and Powai lakes overflows into this stream and the waters fall into Mahim bay of the Arabian sea. A stream of water connecting the large lakes and the sea can hardly be called a mere drain. As a matter of fact, the authentic records to show the status of this stream of water have to come from the Revenue District Authorities but the appellant has not produced any.
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.
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Application No. ST/ST-1797/09-Mum
APPEAL No. ST/262/09-Mum
Arising out of Order-in-Original no. 03/KLG/Th-II/2009 Dated: 13.08.2009
Passed by the Commissioner of Central Excise, Thane-II
Date of Decision: 08.04.2011
RELIANCE MICHIGAN (JV)
Vs
CCE, THANE II
Appellant Rep by: Mr. P.K.Sahu, Adv
Respondent Rep by: Mr. W.L.Hangshing, JCDR
