P.G. Chacko, Judicial Member - This application filed by the appellant seeks waiver and stay in respect of the adjudged dues which include an amount of Rs. 62,60,558 demanded towards Service Tax and education cess for the period from July, 2010 to January, 2012 and equal amount of penalty imposed on the appellant. On a perusal of the records, we find that the main demand arises out of denial of the benefit claimed under Notification No. 31/2010-S.T., dated 22-6-2010 which had exempted certain specified services "when provided within a port or an airport". The specified services included supply of water, supply of electricity and pollution control services. The exemption Notification had taken effect on 1-7-2010. The appellant stopped paying Service Tax on the said three activities from that date, claiming the benefit of the Notification. Today, we have heard rival submissions on the question whether supply of water, supply of electricity and pollution control services provided by the appellant within Kakinada Port (coming within the ambit of "other port" defined under section 65(76) of the Finance Act, 1994) would attract the above Notification. According to the learned counsel for the appellant, it was not the legislative intent to deny exemption to the above services rendered within "other port". According to him, the term "port" figuring in the opening part of the Notification should be so interpreted as to include in "other port" also. Per contra, the argument of the learned Additional Commissioner (AR) is that the legislative intent underlying the exemption Notification should be discerned from the language used therein. It is submitted that "port" and "other port" are distinctly defined separate terms and hence the term "port" figuring in the text of the Notification cannot mean "other port". In this connection, reference is made to CBEC's letter No. 334/3/2010-TRU, dated 1-7-2010 (para 4.3), wherein the contours of similar exemption granted in respect of basic activities undertaken within ports, other ports and airports were laid down. The learned Additional Commissioner (AR) has usefully referred to some of the clarifications contained in para 4.3 of the Board's letter. He has also invited our attention to Notification No. 41/2010-S.T., dated 28-6-2010 wherein exemption was granted in respect of certain specified services provided wholly within the "port" or "other port" or "airport". The gist of arguments of the learned Additional Commissioner (AR) is that, whenever the Central Government intended to exempt activities performed by a service provider within ports governed by the provisions of the Indian Ports Act, it was expressly stated so in the relevant notification as is seen from Notification No.41/2010-S.T., ibid.There is no reference to such ports (including Kakinada) in Notification No. 31/2010-S.T., dated 22-6-2010 and hence the appellant cannot claim its benefit.

2. In our view, the arguments of the learned Additional Commissioner (AR) are forceful and the same have not been successfully contested by the learned counsel for the appellant. The learned counsel has, however, pleaded limitation against a part of the impugned demand. At this stage, it is submitted by the learned Additional Commissioner (AR) that a major part of the demand is within the normal period.

3. The appellant has not pleaded financial hardships.

4. In view of the relevant facts and provisions stated herein before, we have found no prima facie case for the appellant and hence they should make a reasonable pre-deposit. We direct them to pre-deposit an amount of Rs. 30 lakhs (Rupees thirty lakhs only) within six weeks and report compliance to the Deputy Registrar on 9-5-2013. Deputy Registrar to report to the Bench on 16-5-2013. Subject to due compliance, there will be waiver and stay in respect of the penalty imposed on the appellant and the balance amount of Service Tax and education cess and interest thereon.

5. There is a miscellaneous a