JUDGMENT :

RAJESH S. PATIL, J.

1. This Appeal is filed under Section 83 of the Finance Act, 1994 read with Section 35G of the Central Excise Act, 1944, challenging the concurrent findings recorded by Order No. A/93256-93257/16/STB dated 21 October, 2016 (for short referred as “Main Order”) and Order No. M/87288/17/STB dated 5 May, 2017, arising out of application for Rectification of Mistake (for short referred as “ROM”) passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai (for short referred as “CESTAT”).

2. The appeal is being considered on following Questions of law:-

"1. Whether the Tribunal was right in passing the impugned order beyond the allegations made in the show cause notice both on merits and limitations?

2. Whether the Tribunal was right in dismissing the Rectification of Mistake Application in cursory manner without discussing various judgments cited by the Appellant which are squarely applicable to the facts of the present case and without considering written submission filed post hearing?

3. Whether the Tribunal was correct in not considering the decision of the coordinate bench in the case of Chahabria Marketing Ltd. V. Commissioner of Service Tax, Mumbai reported as 2016(43) STR 93 which holds that exemption under Notification No. 13/2003-ST dated 20.06.2003 is available to all services provided under Business Auxiliary Service?

4. Whether the Tribunal was correct in restricting the scope of exemption under Notification No. 13/2003-ST dated 20.06.2003 to the subcategory of promotion and marketing of "Business Auxiliary Services" and not the entirety of "Business Auxiliary Services"?

5. Whether the Tribunal was correct in holding that services in the nature of "veterinary services" and "Technical Testing services" will fall under the taxable category of "Business Auxiliary Services" when at the relevant point of time the testing services on animals were specifically excluded from the definition of "Technical Testing services".

3. We have heard the parties finally.

FACTUAL MATRIX

4. Appellant is engaged in business of production and marketing of chicks and other related activities on behalf of its clients/group companies. Appellant has been providing services as a Commission Agent to M/s. Venco Research & Breeding Farm Pvt. Ltd (for short ‘Venco’)and M/s. Venkateshwar Research & Breeding Farms Pvt. Ltd. (for short ‘VRB’) in the nature of promotion and marketing service, veterinary service, laboratory analysis and testing service. Commission for the aforesaid services is charged as per the total sales made by Venco and VRB.

5. The Excise Department directed Appellant to pay service tax on commission received for testing and veterinary services, under the taxing entry of ‘Business auxiliary services” rendered since 1 July, 2003, on the basis that the said activities/services are covered by customer care services provided on behalf of the client. Accordingly, the Central Excise Department on 15 April, 2009 issued a Show Cause Notice, demanding Service Tax of Rs.89,38,978/- along with interest and penalty, from the Appellant. The Appellant, by its letter dated 10 June, 2009 replied to the Show Cause Notice giving its explanation to the Show Cause Notice.

6. On 23 August 2011, the Commissioner of Central Excise, Pune–III, heard the parties and by an Order-in-Original dated 31 October, 2011, the demand was confirmed, along with interest, however, no penalty was imposed as per Section 80 of Finance Act, 1994.

7. Appellant being aggrieved by the Order-in-Original preferred an appeal before the CESTAT, being Appeal No.ST/75/12. So also the Respondent/Commissioner of Central Excise and Service Tax, Pune III filed an Appeal under Section 86 of the Finance Act with the Appellate Tribunal of CESTAT, being Appeal No. ST/45/12 as penalty was not imposed.

8. Both the Appeals were heard by CESTAT and by an order dated 21 October, 2016, the CESTAT confirmed the demand, limiting to the quantum of service