TMI Blog2008 (3) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... hri K.S. Ravishankar, K.S. Naveen Kumar, Aninith and R.J. Nayak, Advocates, for the Appellant. Dr. Nitish Birdi, SDR, for the Respondent. [Order per: P.G. Chacko, Member (J)]. - In the case of M/s. Fifth Avenue, the challenge is against a demand of service tax of over Rs. 1.8 crores in the category of "Business of Auxiliary Service" (BAS, for short) for the period 1-7-2003 to 18-4-2006 as also against a further demand of service tax of over 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntroduced for the levy of service tax with effect from 1-5-2006 only vide Section 65(104c). On the other hand, learned Commissioner upholding the Revenue's view has taken a stand that the above services were rightly classifiable under the 'BAS' category under Section 65(19) and accordingly the entire demand has been confirmed against the parties. The Commissioner appears to have relied on a circular of the Board to take the view that the appellants are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1994, no amendment whatsoever was made to the pre-existing entry viz, clause (19). On a comparison of the services specified under clause (104c) with the services found to have been rendered by the appellants, we have come across many elements in common. It appears that most of the services rendered by the appellants are the same as those specified under Section 65(104c). If that be the case, there is substance in the submission of the appellants that, for any 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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