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TMI Blog2008 (3) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... ver Rs. 9 lakhs in the same category for the period 9-7-2004 to 30-9-2006. This party has also challenged the penalties imposed on them. In the other case of M/s. Fifth Avenue Wind Mill Pvt. Ltd., the appellant challenges total demand of service tax of over Rs. 89.5 lakhs. This demand includes an amount of over Rs. 13.6 lakhs for the period 9-7-2004 to 31-3-2006 and the remaining for period 15-3-2005 to 30-9-2006. They also challenge the penalties imposed on them. The present applications seek waiver of pre-deposit and stay of recovery in respect of the amounts of service tax, interest and penalties. 2. After examining the records and hearing both sides, we note that a major part of the demand raised on each of the assessees is in the cat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also liable to pay service tax on the services received by them from abroad (reverse charge mechanism) for the material periods on account of alleged retrospective operation of Section 66A of the Finance Act, 1994. As against this demand, it is the case of the appellants, reiterated by their counsel, that Section 66A which was enacted on 18-4-2006 had no retrospective effect as held by this Tribunal in the case of Foster Wheeler Energy Ltd. v. Commissioner of Central Excise & Customs [2007 (7) S.T.R. 443 (Tri.-Ahmd)]. Nevertheless, in respect of M/s. Fifth Avenue, learned counsel has, for the present, submitted that they are not averse to depositing an amount of service tax of Rs. 1,10,361/-, which is for the period from 1-5-2006. Insofar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y period prior to 1-5-2006, they are not liable to pay service tax on the services rendered by them, in the category of "Business Auxiliary Service". It is submitted that the same service cannot get classified under two different entries under Section 65. The services specified under clause (104c) can hardly be classified under clause (19), the pre-existing entry inasmuch as, when clause (104c) was inserted, no amendment was made to clause (19). We have held to this effect in very many cases. Therefore, against the payment of service tax in the category of 'BAS', the appellants have made out prima facie case. As against the rest of the demands also, barring the demand of service tax of Rs. 1,10,361/-, the appellants seem to have a good case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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