Page 128 - GSTL_7th May 2020_Vol 36_Part 1

86 GST LAW TIMES [ Vol. 36
crane support and stoppage area on main deck or equipment. Their har-
bour tugs are deployed for piloting big vessels in and out of the harbour
and for husbanding main fleet. They give vessels on time charter basis to oil
and gas producers to carry out offshore exploration and production activi-
ties. 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
(zzzzj) is not a specie of what is covered by entry (zzzy). Introduction of new
entry and inclusion of certain services in that entry would presuppose that there
was no earlier entry covering the said services. Therefore, prior to introduction of
entry (zzzzj), the services rendered by the members of the 1st petitioner were not
taxable. Creation of new entry is not by way of amending the earlier entry. It is not
a carve out of the earlier entry. Therefore, the services rendered by the
members of the 1st petitioner cannot be brought to tax under that entry.
(emphasis supplied)
19. Reference can also be made to the decision of the Tribunal in M/s.
Malviya National Institute of Technology v. Commissioner, Service Tax, Jaipur - 2019
(6) TMI 127-CESTAT NEW DELHI = 2019 (28) G.S.T.L. 472 (Tribunal) wherein it
was observed that :-
14. ------The definition of ‘CE’ services as it stood prior to 16 July, 2001
was not amended when a new service namely, ‘STC’ was inserted on 16 Ju-
ly, 2001. It cannot, therefore, be alleged that ‘STC’ service had been carved
out from ‘CE’ Services. In fact, the definition of ‘CE’ services continued to
remain the same, till it was amended in 2006. Thus, the Show Cause Notice
proceeded on an incorrect premise that even prior to 16 July, 2001, the na-
ture of service provided in ‘STC’ services was the same as ‘CE’ Services.
20. The same view was taken by the Tribunal in M/s. Hal Offshore Ltd. v.
Commissioner of Service Tax, Delhi - 2018-TIOL-1631-CESTAT-DEL wherein it was
observed that :-
9. ------The same service cannot be taxed under two different tax entry for differ-
ent periods. Admittedly, the taxing scope of business support service did not un-
dergo in the statute by change or amendment during the material time. A new Ser-
vice Tax entry for supply of tangible goods was introduced w.e.f. 16-5-2008. It is
not the case of the Revenue that the said tax entry is not applicable to the appellant.
The only contest is that prior to 16-5-2008 the same service should be taxed
under different entry, namely, BSS. We find no legal support for such asser-
tion. In this connection we refer to decision of the Tribunal in Deibold Sys-
tems (P) Ltd. v. CST, Chennai - 2008 (9) S.T.R. 546 (Tri. - Chennai) 2008-TIOL-
489-CESTAT-MAD. The Tribunal held that in case of introduction of new tax en-
try without amending the pre-existing tax entry it cannot be said that the same ac-
tivity will be liable to tax under pre-existing as well as new entry. Following the
said ratio, which has been adopted in many other cases by the Tribunal, we
hold that there is no merit in the contention of the Revenue for the tax lia-
bility of the appellant in respect of supply of tangible goods prior to
16-5-2008.
(emphasis supplied)
21. In the instant case, the definition of BAS did not undergo any
change when a new service ‘in relation to mining’ was introduced with effect
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