Archana Wadhwa, Member (J)

1. Being aggrieved with the order passed by the Commissioner (Appeals), Revenue has filed the present appeal. We have heard Shri B.L. Soni for the department and Shri Shashnak, learned Advocate for the respondent.

2. The dispute in the present appeal relates to as to whether the activity of keeping the vehicles on behalf of some banks and finance agencies would amount to activity of storage and warehousing services so as to be liable to payment of service tax. The respondents are engaged in keeping the vehicles of some banks who have given loans to the vehicle owners for purchase of vehicles but the vehicle owner have failed to repay the loan amount and as such the vehicles have been taken in the custody by the financial institutions. As such Banks, finance agents do not have sufficient facility to keep the vehicles they availed the services for the respondents for keeping the vehicles and also providing security, maintenance etc. to the said vehicles. Revenue entertained the view that such activity of the respondents amounted to storage and warehousing activity and accordingly, sought to tax the same. Show cause notice dated 16-3-07 was issued proposing confirmation of service tax of Rs. 8,05,813/- and education cess of Rs. 11,580/- for the services provided by them during the period 2002-2006. The said show cause notice culminated into an order passed by the original adjudicating authority confirming the demand and imposing penalty.

3. However, on appeal the said order of the adjudicating authority was set aside by the Commissioner (Appeals) holding that the activities undertaken by the respondents amounted to rendering of open space for parking for cars by the banks etc. and did not amount to storage and warehousing activity. He accordingly, set aside the impugned order. Hence the present appeal.

4. Though both the sides have advanced arguments on the merits of the case, we find that undisputedly the respondents got themselves registered with the Service tax department with effect from 1-6-2006 under the category of business auxiliary services and have been paying service tax accordingly with effect from the said date. The dispute in respect of the same services pertains to the period prior to 1-6-06. It is seen that the Revenue has not raised any objection in the appellants registration under the category of business auxiliary services and accepted the service tax paid by them with effect from 1-6-2006. Tribunal in the case of BCCI v. CST, Mumbai reported in : 2007 (7) S.T.R. 384 (Tri. - Mumbai) has held that when there is an imposition of tax on a particular activity from a specific date, the same activity cannot be held to be falling under a different entry prior to the said date. As such, we are of the view that the Revenues appeal can be disposed of on this short ground itself. The Revenue having taxed the respondents in the category of business support services with effect from 1-6-06, their stand prior to the said date for same activity amount to storage and warehousing cannot be accepted. Revenues appeal is accordingly, rejected.