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2010 (1) TMI 694 - CESTAT BANGALOREWaiver of pre-deposit - Service tax liability under port service - Royalty - ownership / lease hold rights of the equipment of the appellant shall stand transferred to the licensee from the date of receipt of first installment of the upfront payment - The leasehold rights and ownership of crane leased from M/s. ABG Heavy Industries Ltd., was also passed on to the licensee - The consideration received was accounted in the financial records of CPT as sundry debtors and the value of the assets written off at the written down value of Rs.7.6 crores - Even if the equipment is held to have been leased to IGTPL and not sold, we find that no tax can be levied on the consideration as it is not received towards port services rendered by CPT. Upfront charges - The royalty amounts were paid by IGTPL @ 33.33% of its gross revenue under its agreement with CPT - This amount was paid by IGTPL to CPT for allowing it to develop and operate Rajiv Gandhi Container Terminal at the port premises - Do not find any logic in treating CPT allowing IGTPL, to develop and operate the container terminal as an activity falling under port services. The royalty received by the appellant is not a consideration for any port services rendered by CPT. If at all IGTPL pays service tax as demanded, the same will be available to it as cenvat credit, and can be used to meet its liability on services rendered by it. We find the impugned demand not liable to be sustained. Rent on jetties - the rental amounts collected for renting out various jetties within the port area, find that the same cannot be subjected to tax under “Port Services” - The assessee did not put up jetties but collected charges for licenses granted to other persons to put up structures on the waters coming within the administrative jurisdiction of CPT - These charges are collected in accordance with Cochin Port (licensing of jetties, slipways and boat pen) Regulations, 1968 - find these charges for licenses as not classifiable under port services or taxable under that head. Estate rentals received - find that these are recovered for leasing out immovable property of IGTPL for permitting it the use of the site belonging to CPT - Renting of immovable property services under which the impugned activity will be appropriately classified was introduced only on 1.6.2007 post the period of dispute - Therefore, the impugned demand under Port Services is liable to be set aside.
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