9911796707
TMI Blog2012 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... ddl. Commissioner, for the Respondent. [Order per : P.G. Chacko, Member (J)]. - This application seeks waiver and stay in respect of an amount of Rs. 59,43,842/- demanded as service tax and education cess for the period from 1-7-2003 to 8-7-2004 and also the penalties imposed on the appellant. The impugned demand is under the head "Maintenance or Repair Service". After examining the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to levy service tax on the same activity under a different head and hence the impugned demand. The learned counsel for the appellant refers to the second 'Explanation' to the definition of 'Business Auxiliary Service' given under Section 65(19) of the Finance Act, 1994 and submits that, by virtue of this 'Explanation' which has retrospective effect, the activity undertaken by the appellant was cov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was rendering 'Repair or Maintenance Service' during the period of dispute is discernible from the above Articles of the Agreement. 3. After giving careful consideration to the submissions, we have found prima facie case for the appellant on the strength of the 'Explanation' referred to by their counsel. This 'Explanation' reads as under : "Explanation : For the removal of doubts, it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of machines by M/s. L & T Komatsu Ltd. and, therefore, the appellant's services squarely fall within the ambit of the definition of 'Business Auxiliary Service'. It is not in dispute that, during the period of dispute, they were entitled to exemption. The impugned demand under a different head is not sustainable. Hence there will be waiver of pre-deposit and stay of recovery in respect of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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