TMI Blog2009 (12) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... here fore, as rightly argued by the “ appellants, the show cause notice basic to the proceedings issued in July, 2006 is barred by limitation. The demand of service tax is not sustainable, the demand for interest and penalties imposed are also not sustainable. Accordingly, the impugned order set aside and the appeal is allowed. - ST/43/2008 - 444/2010 - Dated:- 3-12-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) REPRESENTED BY: Shri P.K. Shah, Advocate, for the Appellant. Shri M. Vivekanandan, SDR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - The impugned order confirmed a demand of Rs. 1,02,892/- towards port services rendered by the appellants during the period 16-7-2001 to 15- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice during the material period. 2. In the appeal filed before the Tribunal and during hearing, the appellants have challenged the impugned order on the ground of limitation as well as on merits. It is submitted that the authorities were aware of the nature of services rendered by the appellants during the material period, at the time of registering them as an assessee providing cargo handling service with effect from 16-8-2002. The appellants were told in a workshop organized by the Central Excise department on 27-12-2002 that the services rendered by them fell under 'port services'. The appellants did not agree with the above view and wrote to the Commissioner of Central Excise intimating its stand, on 26-3-2003. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 42 shall charge or recover for such service any sum in excess of the amount leviable according to the scale framed under Section 48 or Section 49 or Section 50 of MPTA. The appellants were not subject to such restriction. They were free to charge its customers for the service depending on demand for the services. Reliance was placed on the following case laws :- (i) Homa Engg. Works v. Commissioner of Central Excise, Mumbai [2007 (7) S.T.R. 546] (ii) Velji P. Sons (Agencies) P. Ltd. v. Commissioner of Central Excise, Bhavanagar [2007 (8) S.T.R. 236 (Tri. - Ahmd.)] (iii) Konkan Marine Agencies v. Commissioner of Central Excise, Mangalore [2007 (8) S.T.R. 472 (Tri.-Bang.)] 3. We have heard both sides. 4. We have ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act with intent to evade payment of duty on the part of the appellants to justify invocation of larger period. The appellants operated in the port area on the strength of a licence issued by Visakhapatnam Port Trust. The definition of the entry 'port services', the material period was 'any service rendered by a port or any person authorized 'v such port in any manner in relation to a vessel or goods'. In Velji P. Sons (Agencies) P. Ltd. (supra), the Tribunal held that a person issued with a licence by the Fort Trust to operate in port premises was not a person authorized in terms of Section 42 of the MPTA. The person so authorized recovers charges for its ser .ices at the rates fixed under Section 42 of MPTA by issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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