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2010 (9) TMI 592 - AT - Service TaxDemand - Terminal charge - Storage and Warehousing Service - Penalty - As per the assessee, this accounted for Rs. 1.10 crores of a total demand of Rs. 1.35 crores wrongly adopted as Rs. 1.99 crores - terminal charges are collected for services rendered by the appellants incidental to the provision of storage of cargo by it as a custodian - dispute involved was of technical nature and in such cases, penalty was not imposable in the light of several judgments of the Apex Court The appellant had collected demurrage charges for storing unaccompanied baggage in the appellants’ warehouse for storage beyond the free period - As per Circular F. No. B/11/1/02-TRU, dated 1-8-2002, services provided in relation to export cargo and passenger baggage were excluded from tax net - since the passenger baggage was specifically excluded from the entry “cargo handling service’, passenger baggage could not be subjected to tax under any other entry - storage and warehousing’ of passenger baggage is not exempted for the reason that ‘cargo handling service’ does not apply to passenger baggage Regarding penalty - assessee did not file ST-3 returns declaring the correct taxable value as prescribed - Held that the assessee was not liable to pay service tax on demurrage and handling charges with respect to export cargo baggage in appellants’ own case - The circumstances clearly show that the appellant had not attempted to evade service tax due - the penal liability of the appellant under Section 76 of the Act to be adjudicated afresh considering the provisions of Section 80 of the Act - The appeal is rejected
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