TMI Blog2012 (4) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... of a later entry under the Service Tax does not ipso facto mean that the said activity was not covered under the previous entry though they were specifically included under the definition of taxable services - the appellant has not made out any prima facie case for grant of complete waiver of pre-deposit. Inasmuch as the appellant has collected the amount of service tax form some of their clients, the balance of convenience lies in favour of the Revenue by way of direction to deposit Rs. 85 Lakhs - ST/116/2010 - S/312/2012/CSTB/C-I - Dated:- 23-2-2012 - Ashok Jindal, P R Chandrasekharan, JJ. For Appellant: Shri S S Gupta, CA For Respondent: Shri A N Sharma, Commissioner (AR) Per: P R Chandrasekharan: The appeal and stay application are directed against the Order-in-Original no. 19/STC/BR/2009-10 dated 10.12.2009 passed by the Commissioner of Service Tax, Mumbai. The stay application is being taken up for consideration. 2. The facts for consideration of this case are as follows:- (i) Acting on an intelligence, the officers of Directorate General of Central Excise Intelligence, DGCEI, Mumbai searched the premises of the appellant M/s Safe Sure Marine Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he investigation, a show-cause notice was issued to the appellant demanding Service Tax amounting to Rs.1,81,63,718/- in respect of the services rendered to various shipping companies under Manpower Recruitment or Supply Agency Service' for the period prior to 1.5.2006 and under Ship Management Service' w.e.f 1.05.2006 under the provisions of section 73 of the Finance Act, 1994. Interest was also demanded under Section 75 of the said Finance Act and the show-cause notice also proposed imposition of penalties under sections 76, 77 and 78 of the said Finance Act. (iv) The show-cause notice was adjudicated vide the impugned order and the lower adjudicating authority confirmed the duty demand of Rs.1,81,63,718/- along with interest thereon at appropriate rates. He also imposed penalty under section 76 of the Act @Rs.100/- per day till 17.04.2006 and @200/- per day after 17.04.2006 under the provisions of section 76 of the Finance Act, 1994 and a penalty of Rs.1000/- under section 77. He also imposed a penalty of Rs.1,82,00,000/- under section 78 of the Finance Act, 1994. The appellants are before us against the said order. 3. The learned Counsel for the appellant makes the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to be paid by the appellant under the above mentioned category. He also relies on the Board's Circular no. 334/1/2008-TRU dated 29.02.2008 wherein it has been clarified that "specifying a service separately as a taxable service does not necessarily mean or suggest that services falling within the scope of newly specified service were not earlier classifiable under any one of the existing taxable services". He also relied on the judgment of the Tribunal in the case of Jetlite (India) Ltd. vs. Commissioner of Central Excise, New Delhi reported in 2011(21)STR 119 (Tri-Del) in support of the above contention. He also points out that the appellant had collected Service Tax from M/s ABG Shipping Co., but had not deposited the same to the exchequer and in respect of M/s SICAL, the applicant at the first instance issued invoices charging Service Tax but later on issued other set of invoices without Service Tax bearing the same serial numbers as earlier one. The conduct of the appellant clearly indicates that the appellant were aware of their liability to discharge Service Tax but later on they had deleted the Service Tax element on advise of M/s SICAL. Therefore, he submits that the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s SICAL, they re-issued the invoices without indicating Service Tax. Thus, the very conduct of the appellant clearly reveals that the appellant fully well knew that the activity undertaken by them was liable to Service Tax and they had also taken precaution by collecting the Service Tax from the customers wherever customers did not object to the same. The argument that after 1.5.2006, there is a specific service namely "Ship Management Service" which covers supply of crew for the ship and, therefore, the activity is liable to be taxed only on or after 01.5.2006 does not stand to any logic or reason. The definition of Ship Management Service' includes 10 categories of activity such as (i) the supervision of the maintenance, survey and repair of ship; (ii) engagement or providing of crews; (iii) receiving the hire or freight charges on behalf of the owner; (iv) arrangements for loading and unloading; (v) providing for victualling or storing of ship; (vi) negotiating contracts for bunker fuel and lubricating oil; (vii) payment, on behalf of the owner, of expenses incurred in providing services or in relation to the management of the ship; (viii) dealing with insurance, salvage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir case at all as in that case prior to 1.5.2006, the appellant thereunder discharged the Service Tax liability under the category of Manpower Recruitment or Supply Agency Service'. The issue involved was whether the appellant should pay Service tax on the same activity under the taxable service category of Management Consultant Services' also, and this Tribunal held that on the same activity, Service Tax cannot be demanded twice under two different categories. That is not the issue in the present case. In the present case, Service Tax has been demanded only under the category of Manpower Recruitment or Supply Agency Service' and, therefore, the ratio of the judgment in the Creative Marine Services (supra) cannot be applied as the facts are distinct and distinguishable. 5.6 It is further noted that this Tribunal in the case of Jetlite (India) Ltd. (supra) has observed as follows:- "103. There can hardly be any quarrel about the proposition that introduction of specific entry does not mean that the subject covered by the specific entry was not covered by general entry prior to the introduction of specific entry. But that is not the case in the matter in hand. In our case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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