ORDER
P.G. Chacko, Member (J)
1. Ld. Commissioner has demanded service tax of Rs. 65,21,260/- from the appellants for the period 16.7.2001 to 30.6.2003 for a service designated “port service” and found to have been rendered by the appellants within the Chennai port premises. After examining the records and hearing both sides, we note that the Commissioner’s order is in adjudication of a show-cause notice issued in 2006 for the aforesaid period. The short question arising for consideration is whether the repairs and maintenance of ocean vessels done by the appellants in the port premises during the above period could be treated as ‘port services’ defined Under Section 65 of the Finance Act, 1994.
2. In the case of Homa Engineering Works v. CCE Mumbai 2007 (81) RLT 313 (CESTAT-Mum.) cited by ld.counsel, it was held that repair of vessel to be treated as ‘port service’ should be done either by the port or by a person authorized by them. It is submitted that the repairs carried out by the appellants did not fall in that category inasmuch as the activity was undertaken independently by the appellants. Ld.counsel has also relied on the Tribunal’s decision in Cochin Shipyard Ltd. v. CCE Cochin 2007 (80) RLT 484 (CESTAT-Ban.), wherein it was held that, in the absence of maintenance contract, maintenance and repair of ships were not to be taxed for service tax prior to 16.6.2005. Contextually, it is submitted by counsel that the appellants have been paying service tax from 1.7.2003 onwards, albeit by mistake. Ld.SDR has claimed under a circular dated 11.10.2003 issued by CBEC. We note that this circular was also taken note of by the Tribunal in Homa Engineering Works (supra). The appellants have made out prima facie case against the demand. Accordingly, there will be waiver of predeposit and stay of recovery in respect of the amounts of service tax and penalties.
3. The next application before us is for out-of-turn disposal of the appeal. It is submitted by counsel that the case involves high stake. We have heard ld. SDR also. The amount of tax demanded from the appellants is over Rs. 65 lakhs and one of the penalties imposed on them is also of equal amount. Having regard to the high stake involved in the case, we allow this application and direct the appeal to be posted to 20.11.2007.
(Dictated and pronounced in open court)
