TMI Blog2015 (11) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... by appreciating the fact that the works contract has been held to be vivisectable prior to 01/06/2007 as per the Tribunal s Larger Bench decision, as also by appreciating the fact that the services in the two show-cause notices falling within the limitation period may not be strictly port services and if the same are held to be works contract services, the same would be entitled to exemption notification as also by appreciating the fact that the appellant has not pleaded any financial hardship and taking into account the decision of the Hon’ble Rajasthan High Court in the case of Arjun Industries referred [2015 (6) TMI 110 - RAJASTHAN HIGH COURT], we deem it to accept the offer made by the learned advocate as fair and just and accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e second show-cause notice dt. 21/10/2011 was issued demanding service tax for the period April 2010 to March 2011, under the category of port services. The 3rd show-cause notice dt. 26/02/2013 is for the period April 2011 to March 2012 confirming the demands under the port services category. 3. Learned advocate appearing for the appellant submits that the first demand raised under show-cause notice dt. 19/01/2011 is under various categories like consulting engineer service, technical testing and analysis service, cargo handling service and many more services, which stands raised by vivisecting the works contract entered between the appellant and KPCL. In terms of the said contract, he submits that the appellant was to do the entire work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed by taking the entire consideration received by them from the service recipient, as assessable value of the service whereas in terms of the works contract service, they are entitled to the benefit of abatement to the extent of 60% and further the benefit of CENVAT credit of duty paid on various inputs. He submits that though the Commissioner has observed that the appellants would be entitled to the CENVAT credit, he has not extended the benefit of the same and has not quantified the same, which would be otherwise available to the appellant. In any case, he submits that for works contract category, there were major various notifications laying down that the construction of the port is exempted from the liability to pay service tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and construction of port are exempted. The benefit of the exemption in terms of the said notifications does not stand granted by the adjudication authority on the sole ground that the same relates to commercial and industrial construction of the port and not about the port services. Inasmuch as he has held that the services to be falling under the category of port services, the applicability of the said notifications does not stand examined by him. 5. Countering the arguments, learned P.R.V. Ramanan, appearing as Special Consultant for the Revenue, draws our attention to the findings of the adjudicating authority. He submits that Krishnapatnam Port is one of the ports listed in the Schedule of the Indian Ports Act, 1908. This itself e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts upon their mala fides and the invocation of the longer period of limitation by the Revenue is justified. He accordingly prays for rejection of the stay petition. 6. At this stage, we find that whereas the appellant may have a prima facie case in respect of various issues raised by the learned advocate, but it cannot be said at this stage that no tax liability would be fastened on them, whether under the category on which the Commissioner has adjudicated or under any other category of services. On being asked, learned advocate fairly agrees that they are not pleading any financial hardship and they have not placed any evidence to reflect upon the same. However he draws our attention to the provisions of Section 35F of Central Excise A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. UOI [Writ Petition No.12232 of 2014] laying down that amendment to Section 35F w.e.f. 06/08/2014 cannot be restricted only to the appeals filed on or before 06/08/2014, otherwise it would be violative of Article 14 of Constitution of India, had adopted the said provision of Section 35F even in respect of stay petitions filed before 06/08/2014. As such, the Hon ble Rajasthan High Court in the said decision had reduced the 50% amount of the tax directed to be deposited by the Tribunal to 10% of the confirmed demand in view of the amended provisions. As such learned advocate submits that in view of the said decision of the Rajasthan High Court, the provisions of Section 35F should be taken as a guideline for the purpose of predeposit. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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