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TMI Blog2013 (8) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... n time due to break down of his vehicle on the way. He submits that the ex-parte order directing pre-deposit of the entire amount of service tax as pre-condition for admission of appeal causes serious injury to the applicant and therefore the ex-parte order should be recalled and the matter should be heard on merits. The learned AR opposes the prayer. We have considered the situation and we are of the view that in the interest of justice the stay petition should be heard on merits now that the counsel is present and he is willing to argue the case. Therefore, we recall the ex-parte order dated 23.4.2013 and we proceed to hear both the sides in the matter. 2. The issue involved in this appeal according to the applicant, is that the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rately in respect of each activity. He invited attention to the Chapter Note in Chapter 21 of Central Excise Tariff to the effect that such processes undertaken by the applicant amounts to manufacture. Where activities amount to manufacture, such activities cannot be classified as Business Auxiliary Service under Section 65(19) of the Finance Act, 1994 in view of the provisions in that Section. He submits that the major portion of the demand is in respect of this item. He concedes that there have been instances where they have also supplied manpower whenever their clients request for supply of manpower and in respect of such manpower supply the total liability is within the threshold limit for small units and that is the reason why they wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Exchequer. 5. Considered arguments on both sides. We have first taken up the contention of the Revenue that the applicant had collected service tax but not paid to the exchequer. We find that the show-cause notice does not expressly invoke provisions of 73A of the Finance Act, 1994 and in a passing manner, for the purpose of invoking the extended period, it is stated that tax is collected but not paid. It appears that the adjudicating authority is reading much into this clause in the contract that liabilities of service tax, if any, is to the account of the applicant. Revenue has not put any concrete proof in the show-cause notice or in the Order-in-Original to the fact that applicant has collected tax but not paid it to exchequer. The C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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