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2014 (10) TMI 730 - CESTAT BANGALOREClassification of service - Cleaning service or Business Auxiliary Service - Held that:- If it is cleaning service, normally the area to be cleaned and the nature of cleaning, the periodicity etc. would be specified. Moreover the amount payable for the services rendered would not be based on number of vehicles and from the work order and the certificate provided by a receiver of service, we find that the appellants were paid only on the basis of number of vehicles provided for shifting of slurry from settling tank to disposal yard and there is no evidence of any payment made by taking into account other services provided. No doubt in the invoices the appellant, who is an individual, has mentioned the service provided as cleaning service but the actual facts are otherwise. Service provided by the appellant appears to be supply of tangible goods since the payment is made on number of vehicles provided and appellants have discharged their liability for the period subsequent to 16/05/2008 and have been paying service tax which would mean that the conditions for treating the service as supply of tangible goods has been accepted by the appellant himself for the period subsequently. The service has not been reclassified after 16/05/2008 also even though the matter was adjudicated and it was contended that service provided was not cleaning service. Under these circumstances, even if the appellant does not have a strong case on merits which in our opinion may not be a fact yet the appellant would be entitled to the benefit of limitation - there is no pre-deposit required to hear the appeal and accordingly, the requirement of pre-deposit is waived and stay against recovery is granted during the pendency of appeal - Stay granted.
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