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TMI Blog2009 (8) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... tant” has not been shown to have undergone any change with effect from 1-7-03 with the introduction of “Business Auxiliary Service. The appellant has made out a prima facie case against pre-deposit of the demand of service tax and penalty. Therefore, there will be waiver of pre-deposit and stay of recovery in respect of the amounts of service tax and penalty. - ST/59/2009-Mum - S/352/2009-WZB/C-II/(CSTB), - Dated:- 11-8-2009 - S/Shri P.G. Chacko, Member (J) and A.K. Srivastava, Member (T) Shri Bharat Raichandani, Advocate, for the Appellant. Shri Manish Mohan, SDR, for the Respondent. [Order per: P.G. Chacko, Member (J)]. - After examining the records and hearing both sides, we note that the learned Commissioner has demande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of "Business Auxiliary Services" and are paying service tax accordingly. It was on 1-7-03 that "Business Auxiliary Service" was introduced, as a new taxable service, under Section 65 of the Finance Act, 1994. The case of the appellants is that, as the definition of "Management Consultant" remains the same even after 1-7-03, it cannot be said that "Business Auxiliary Service" is a service carved out of "Management Consultancy". In other words, "Management Consultancy" and "Business Auxiliary Service" would operate in mutually exclusive areas and therefore, the service now classified as "Business Auxiliary Service" cannot be classified as "Management Consultancy" for any period prior to 1-7-03. After considering submissions of both sides, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g main fleet. They give vessels on time charter basis to oil and gas producers to carry out offshore exploration and production activities. The right of possession in and effective control of such machinery, equipment and appliances is not parted with. Therefore, those activities clearly fall in entry (zzzzj) and the services rendered by the members of the 1st petitioner have been specifically brought to the levy of Service Tax only upon the insertion of this new entry. 38. If the Department's contention is accepted that would mean that the activities of the members of the 1st petitioner are covered by entry (zzzy) and entry (zzzzj). Such a result is difficult to comprehend because entry (zzzj) is not a specie of what is covered by entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plethora of other decisions in support of the appellant's case. 2. On the other hand, the learned SDR claims support from the decision of the Tribunal in RPG Enterprises Ltd. v. Commissioner of Central Excise, Mumbai-IV - 2008 (11) S.T.R. 488 (Tri.-Mumbai), wherein the principle of mutuality was held not applicable to the case on hand wherein the assessee (provider of service) was a part of a Joint Venture Company. 3. In the present case, however, the learned Counsel has not pressed the appellant's plea that any services rendered by the appellant to the Joint Venture Company, of which they are a part, cannot be held to be taxable. The thrust of the argument of the appellant is on the view taken by the High Court in the aforesaid ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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