1. This application filed by the appellant seeks waiver and stay in respect of an amount of Rs. 3,77,26,883/- demanded as service tax and education cess for the period from 2004-05 to 2008-09 (up to September 2008) and the penalties imposed on the appellant. The impugned demand is under the Head "Scientific and Technical Consultancy Services". The impugned demand was confirmed against the appellant in adjudication of a show-cause notice which was issued on 8/6/2009 by invoking extended period of limitation. Service tax and education cess amounting to Rs. 28,00,000/- is part of the above demand and the same is in respect of Product Technology Support fee (referred to as registration fee in the show-cause notice) which was received by the appellant from seed growers during the above period. This amount of Rs. 28,00,000/- has since been paid by the appellant and a copy of the relevant ST-3 return is being filed. In this scenario, the prayer for waiver of pre-deposit and stay of recovery is pressed only in relation to an amount of Rs. 3.49 crores demanded as service tax and education cess on the amounts received by the appellant from a German Company towards Breeding and Product Development services covered by the relevant agreement. In this connection, the learned counsel refers to the "service agreement for Breeding and Product Development activities" which was executed between the German company and M/s Proagro Seed Company Private Limited (erstwhile name of the appellant) on 8th May 2002. As per this agreement, the appellant agreed to provide labour, personnel, and such other resources as required from time to time by the German Company for breeding and product development activities with regard to field studies and these services were more particularly described in the Schedule to the agreement. The relevant schedule to the agreement described the services thus: "Breeding and Product Development Services for oilseed, brassicas, corn, rice, cotton sorghum, millet, sunflower and vegetables". The different activities involved in these services were also specified in the said schedule, such as Selection/Introgression, Breeding, Molecular Breeding & QC/QA, Product Placement, Seed Product Information Management, Germplasm protection, Global Coordination. With reference to these provisions of the agreement, the learned counsel submits that the requisite seeds for the breeding and product development services were provided by the German company, that the breeding and product development activities were performed by the appellant in India by making use of their own personnel and labourers, that the R&D results were transmitted to the German Company and the consideration for these services was received in foreign currency. It is submitted that, on these facts, the appellant was exporting the services out of India and hence did not have the liability to pay service tax by virtue of the exemption available under the Export of Services Rules 2005. In this connection, the learned counsel relies on a decision of this Bench viz Mapal India (P.) Ltd. v. CCE [2011] 33 STT 396 wherein, on the facts of that case, certain services delivered by the assessee to a company located abroad were held to have been utilized abroad as the beneficiary was a foreign company. The learned counsel has also claimed support from CBEC Circular No 111/05/2009-ST dated 24/4/2009. Learned counsel has also pleaded limitation against the demand. It is submitted that the approximate amount of service tax coming within the normal period is Rs. 60,00,000/-insofar as the services which are claimed to have been exported.

2. We have also heard the learned Dy Commissioner (A.R.) who has opposed the prayer for waiver and stay, on the strength of the findings recorded by the learned Commissioner in the impugned order. He has particularly referred to paragraphs 63, 64 & 65 of the Commissioner's order. It is his argument that, as the developed crop seeds were subsequently sol