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TMI Blog2012 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... tion" have been wrongly sought to be included in value of taxable "port" service. Further, the extended period of five years has been wrongly invoked. Hence, the appellant contends that the service tax/penalty/interest demanded are not leviable at all and this is a fit case for exercising discretion under section 80 for complete waiver of all items of demand raised. 2. It has been contended by the appellant that they were under the belief that they were not covered under taxable service in any case upto the period sought to be covered i.e. 31.03.09, and appellant/service provider collected service tax at appropriate rate on this "gross amount charged". In view of the said factual position and the total value of the taxable service was appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able as "port services" under Section 65(82). 13. All the questions referred in the Referral Order are thus answered as above." 4. On going through the facts of the case, we find that Revenue has a fairly strong case in their favour. Though we are not making any observations on the merits of the case it will be only fair and justified if we order for a pre-deposit of the total dues on the respondents to hear this case. We accordingly, order for a pre-deposit of Rs. 3 crores within a period of eight weeks and compliance should be reported before 19.12.11. Till such time further recovery and proceedings will be kept in abeyance. (Pronounced in Court on ------------) Archana Wadhwa, Member (J) P Babu, Member (T) Per: Archana Wadhwa: Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of a works arrangement with payment of fees was known to begun. I therefore hold that they had the intention to evade payment of service tax and thereby they have contravened the provisions laid down in the Finance Act, 1994. I also take note of the fact that though the GMB is a Government organization with no ulterior motives at profiteering. However, this manner of agreement drafting would have lowered the service tax liability that would have been borne by the service receiver who is a commercial entity. I hold that GMB has deliver ately suppressed the value of service provided." 4. As is seen from the above, suppression stands attributed to the appellant on the ground that they have drafted agreement in a complicated manner with a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.ST/358/2010 Per: B S V Murthy: This Difference of Opinion is listed before me as per orders of Hon'ble Vice President for deciding the points of difference arose between the Bench while deciding the Stay Petition No.ST/S/1031/2010 in Appeal No.ST/358/2010 in the case of Gujarat Maritime Board Vs. CST Bhavnagar. 2. The brief facts of the case are that the Gujarat Maritime Board is a provider of port service. The appellant entered into an agreement with M/s Gujarat Ambuja Cement, Kodinar for construction of 2 captive jetty. The cost of construction was to be initially borne by M/s Gujarat Ambuja Cement and expenditure incurred nor construction of said 2 jetties was to be adjusted against the wharfage charges by way of rebate/ concession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the appellant had deliberately entered into a complicated agreement to evade Service Tax and during the time when the agreement was contracted, there was no Service Tax and therefore the extended period should not have been invoked at all in this case; further he also relies upon the decision of this Tribunal in the appellant's own case, wherein vide Stay Order No.S/203/WZB/AHD/2010, dt.22.03.2010, granted stay; further he also relies upon the decision in the case of Bharat Sanchar Nigam Limited to submit that where stay has been granted unconditionally in similar cases, the stay has to be granted in such cases; further he also submits that when there are conflicting decisions, bonafide belief has to be sustained and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to Service Tax and they have deliberately paid lower amount of tax. 6. I have considered the submissions made by both the sides. I find that in similar case, this Tribunal vide Order dt.22.03.2010 cited above had given relief. Further, as submitted, the very fact that the matter has been referred to Larger Bench would show that two views are possible. Moreover, the Larger Bench decision which was relied upon by the Revenue has been stayed by Hon'ble High Court of Madras. Further, as submitted, the Commissioner has come to the conclusion that there was suppression of facts only on the ground that the agreement was drafted in a complicated manner with intention to evade payment of duty. For this, there is no evidence forthcoming an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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