TMI Blog2008 (8) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... that the appellant was issued with a SCN on the ground that the appellant s activities i.e. service of receipt/storage and loading/unloading of bulk LPG filling and refilling of bulk LPG into small empty cylinders and dispatching filled cylinders to the dealers and bringing back the empty cylinders from the dealers, in addition to their own plant, for storage and refilling and keeping inventory for their client against monetary consideration falls under the purview of storage services under Section 65(105)(zza) of the Finance Act, 1994 (hereinafter referred as the Act) and the appellant, having failed to take registration under section 69, failed to pay duty under section 68, and failed to file return under Section 70 of the Act, was called upon to show cause as to why (i) service tax of Rs. 1,71,287/- for the period 16-8-2002 to June, 2005 should not be recovered under Section 73 of the Act; (ii) penalty should not be imposed under Sections 76, 77 and 78 of the Act and (iii) interest at the prescribed rate of the said amount should not be recovered under Section 75 of the Act; that on adjudication, the lower authority has held that the appellant s activities mentioned above wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 65A(2)(a) of the Act and for any reason, taxable service is, prima facie, classifiable under two or more sub-clause of clause (105) of Section 65, the sub-clause which provides the most specific description has to be preferred to sub-clauses providing a more general description as also held by the Tribunal in the case of Coal Handlers Pvt. Ltd. - 2006 (3) S.T.R. 286 (T) = 2004 (171) E.L.T. 191 (T); (vii) that as per Section 65(102) of the Act, storage and warehousing service includes storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage and as per clause (zza) of Section 65(105), taxable service in relation to storage and warehousing of goods means any service provided or to be provided to any person by a storage or warehouse keeper; (viii) that Section 65(76b) of the Act defines packaging activity as packaging of goods including pouch, filling, bottling labeling, or imprinting but does not include any packaging activity that amounts to manufacture within the meaning of clause (f) of section 2 of the Central Excise Act, 1944; (ix) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal service is of bottling and hence the said service has to be classified under the head packaging service and the appellant gets support form the Ministry of Finance Letter No. 334/4/2006 TRU dated 28-2-2006 and from the decision in the case of Turbotech Precision Engg. [2006 (3) S.T.R. 765 (T)], Easso Lifts [2007 (7) S.T.R. 22 (T)], and Prestige Property Management [2007 (8) S.T.R. 533 (T)]; (xvi) that the Department has also issued registration certificate to the appellant under the head Packaging services and has accepted the service tax paid under the said head, it is deemed that they have accepted that the said activity of the appellant is covered under the heading Packaging Services and the Department cannot take contrary stand that for the period prior to 16-6-2005, the said activity is covered under the head storage and warehousing services without disputing the said classification under Packaging Services with effect from 16-6-2005 and the appellant relies on the decision of the Commissioner (Appeals) in the case of Batra Brothers reported in 2008 (9) S.T.R. 299 (Commr. Appeals) wherein the Commissioner (Appeals) has held that bottling activity is covered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further informed that he, being in charge of Indirect Taxation of the appellant company, is very much aware that though the similar activities are undertaken by the appellant all over India, the department has not issued any SCN in other places alleging the activities undertaken by the appellant would fall under storage and warehousing services. 4. I have gone through the case records including record of PH and written submissions made during the hearing. After waiving pre-deposit, I proceed to take up the main petition itself for decision. The issue to be considered in the present appeal is that whether the appellant s activities, as alleged by the Department, would fall under storage and warehousing services during the period prior to 16-6-2005. The lower authority has concluded that as the duration of storage of empty cylinders/filled cylinders is more than the duration of filling LPG into cylinders, the activities of the appellant would fall under storage and warehousing services [Section 65(102) of the Act] and accordingly held that the appellant is liable for service tax. Further he held that as the appellant failed to take registration during the period from 16-8-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t whether the agreement talks anything about the storage and warehousing services . I found that there was no mention about the storage and warehousing services in the entire agreement. Even under the definition no heading for storage and warehousing services is available. Whereas the following definitions which are concerned with the bottling may be useful for better understanding. 1.15 - FILLING CHARGES means bottling charges payable to the operating company for all activities within the bottling plant premises unless otherwise specified in this agreement. 1.16 - FILLING GUN means equipment used for fixing on the cylinder valve at filling scales for filling LPG. 1.28 - The O RING means joint packing, which is fitted in the valve. 1.29 - O RING DEFECT means O ring which is worn/damaged and which can result in LPG leakage when regulator is fixed on cylinder. 1.37 - SAFETY CAP means cap fitted on valve of cylinder to prevent leakage of LPG and withstand LPG pressure of 17 kg/cm2. 1.38 - SEAL means PVC/Aluminium Seals put on the cap of the valve of the cylinder for the purpose of sealing a cylinder after it has been filed with LPG. 1.39 - The SO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nition of storage and warehousing as available under Section 65(102) of the Act reads as under : storage and warehousing includes storage and warehousing services for goods including liquids and gases.......... . The definition of Packaging Services under Section 65(76B) reads as under : Packaging activity means packaging of goods including pouch filling, bottling, labeling, or imprinting of the package but does not include any packaging activity that amounts to manufacture within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944 . 4.4 From the above, it can be seen that under storage and warehousing service definition, definition available is includes storage and warehousing services for goods including liquids and gases and in the case of definition of Packaging Activity services, there is a specific mention of bottling . Therefore, as per Section 65A(2)(a) of the Act, the most specific description has to be preferred over a more general description as held by the above said citation. Besides, as per definition of taxable services in relation to storage and warehousing of goods, as available under clause (zza) of Section 65(105), is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
