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2018 (8) TMI 330 - AT - Service TaxDemand of Service Tax - it was revealed that the appellants have not included value of all services provided/received for discharging their service tax under various categories like Port Services Cargo Handling Services and Goods Transport Agency services for the period 2004-05 to 2005-06 - Extended period of limitation - penalty. Port Services - Held that - The Tribunal has analyzed the very same issue in their case ASPINWALL CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE MANGALORE 2010 (10) TMI 321 - CESTAT BANGALORE where it was held that Since the service provider are issued with stevedore licence by the NMPT to operate within the port area it cannot therefore be said that they are not authorized by the NMPT for rendering services in relation to vessels and goods within the port area - demand set aside. Demand on Cargo Handling Services in respect of raw sugar - Held that - The manufactured products are excluded from the definition of agricultural produce . The Notification is available only to such produce which fall within the definition given in the Notification. Since in our opinion raw sugar is a product which has undergone processing we are of the opinion that the benefit of exemption is not extendable to raw sugar. Thus the Cargo Handling Services in respect of handling of cargo of raw sugar would attract the levy of service tax - demand upheld. Penalties - Held that - No positive act of suppression has been established by the Department with cogent evidence to conclude that there is suppression of fact on the part of the appellant. Apart from merely stating that the appellants did not disclose the fact of rendering of Port Services Cargo Handling Services and Goods Transport Agency Services there is no deliberate act with an intention to evade payment of service tax established by the Department to conclude that there is suppression of facts - the penalty imposed under Section 78 with respect to both issues (Cargo Handling and GTA Services in respect of raw sugar) cannot sustain - penalty u/s 76 upheld. Appeal allowed in part.
1. ISSUES PRESENTED and CONSIDERED
The Tribunal considered the following core legal questions: (a) Whether the services rendered by the appellant fall under the category of Port Services or Customs House Agency (CHA) services for the period 2004-05 to 2005-06; (b) Whether the appellant is liable to pay service tax on Cargo Handling Services related to raw sugar, considering the exemption notification applicable to agricultural produce; (c) Whether the demand for service tax on Goods Transport Agency (GTA) services related to raw sugar is sustainable; (d) Whether the extended period of limitation and penalties under Sections 76 and 78 of the Finance Act, 1994, are applicable, particularly in light of the appellant's bona fide belief regarding exemption eligibility. 2. ISSUE-WISE DETAILED ANALYSIS (a) Classification of Services: Port Services vs. Customs House Agency Services Relevant legal framework and precedents: The definition of Port Services under Section 65(82)(zn) of the Finance Act, 1994, includes any service rendered by a port or any person authorized by the port in relation to vessels or goods. The appellant contended that they were engaged in Customs House Agency services and not Port Services, relying on judgments such as Konkan Marine Agencies Vs. C.C.E., Mangalore and the Tribunal's own prior decisions in Aspinwall & Co. Ltd. cases (2011 and 2017) and HML Agencies (P) Ltd. Vs. Commissioner of Central Excise, Customs and Service Tax, Mangalore. The appellant argued that a license to perform stevedoring activities does not equate to authorization under the Major Port Trust Act, as "authorized" implies acting on behalf of the port, whereas "licensed" means permission to act in an individual capacity. They relied on the Bangalore Bench CESTAT decision and the Supreme Court ruling in Velji P. & Sons, which held that services rendered under a stevedoring license are not Port Services prior to the Finance Act, 2010 amendment. Court's interpretation and reasoning: The Tribunal examined the relevant period (2004-2006) and noted that the Finance Act, 2010, which expanded the definition of Port Services to include all services rendered within port premises regardless of authorization, was not applicable. The Tribunal reproduced the ratio of the Velji P. & Sons judgment, which was binding and accepted by the government subsequently through legislative amendment. Application of law to facts: The Tribunal concluded that during the relevant period, the appellant's services did not fall under Port Services but rather under Customs House Agency services. The appellant was licensed, not authorized, by the port, and thus the demand for service tax under Port Services was not justified. Treatment of competing arguments: The Department contended that the appellant was authorized by virtue of the stevedoring license and hence liable for Port Services tax. The Tribunal rejected this, emphasizing the distinction between "license" and "authorization" and relying on binding precedents. Conclusion: The demand of service tax under Port Services was set aside as the services rendered were not Port Services during the relevant period. (b) Demand for Service Tax on Cargo Handling Services (Raw Sugar) Relevant legal framework and precedents: Exemption Notification No. 13/2003 dated 20.06.2003, as amended by Notification No. 08/2004 dated 09.07.2004, exempts cargo handling services related to agricultural produce. The definition of "agricultural produce" excludes manufactured products such as sugar, edible oils, and processed foods. Court's interpretation and reasoning: The Tribunal examined the definition of agricultural produce, which includes items resulting from cultivation with minimal processing that does not alter essential characteristics, and explicitly excludes manufactured products like sugar. The Tribunal held that raw sugar is a manufactured product since it undergoes processing and is not consumable in its raw form. Key evidence and findings: The appellant claimed that raw sugar is unprocessed and akin to jaggery, which is included in the definition, and thus eligible for exemption. However, the Tribunal found the definition in the notification unambiguous in excluding sugar, including raw sugar, from agricultural produce. Application of law to facts: Since raw sugar is excluded from the definition, the exemption notification does not apply, and service tax is leviable on cargo handling services related to raw sugar. Treatment of competing arguments: The appellant's bona fide belief in the applicability of exemption was rejected because the notification clearly excludes sugar, and ignorance or misinterpretation does not justify exemption. Conclusion: The demand for service tax on cargo handling services related to raw sugar was upheld. (c) Demand for Service Tax on Goods Transport Agency (GTA) Services (Raw Sugar) Relevant legal framework and precedents: Service tax is leviable on GTA services provided in relation to goods transport. The appellant admitted to paying tax on actual freight but contested demand on excess amounts collected. Court's interpretation and reasoning: The appellant did not contest the demand for service tax on GTA services related to raw sugar. However, the appellant sought relief from penalties imposed. Application of law to facts: The Tribunal accepted that the demand for service tax was sustainable but examined the penalty imposition critically. Treatment of competing arguments: The Department alleged suppression of facts for penalty under Section 78, but no cogent evidence was produced to establish deliberate suppression. Conclusion: The demand for service tax on GTA services was upheld, but penalties under Section 78 were set aside due to lack of evidence of suppression. (d) Applicability of Extended Period of Limitation and Penalties Relevant legal framework and precedents: Sections 76 and 78 of the Finance Act, 1994, provide for penalties and extended limitation periods in cases of suppression or evasion. However, settled law holds that extended limitation and penalties are not applicable where the demand arises from interpretation of exemption notifications, as established in Hindustan Petroleum Corporation Ltd. and Kejriwal Casting Pvt. Ltd. decisions. Court's interpretation and reasoning: The appellant contended that their demand arose from a bona fide interpretation of exemption notifications, particularly regarding raw sugar as agricultural produce. The Tribunal found that while the appellant's belief was bona fide, the notification's language was clear and exclusionary. Key evidence and findings: The Department argued that the appellant did not disclose handling of raw sugar and thus suppressed facts. The Tribunal found no positive act of suppression or evasion with cogent evidence. Application of law to facts: Since the demand was primarily due to interpretation of exemption notifications and no deliberate suppression was proven, penalties under Section 78 were not sustainable. Treatment of competing arguments: The Department's reliance on non-disclosure was insufficient to uphold penalties. The Tribunal distinguished between bona fide errors and deliberate suppression. Conclusion: Penalties under Section 78 were set aside; however, the extended period of limitation was upheld as the demand was not solely due to interpretation but also non-disclosure. 3. SIGNIFICANT HOLDINGS "The services rendered by the appellants would not fall under the category of 'Port services'... The modified/altered or expanded definition of 'Port services' would definitely encompass the services rendered by the appellants herein, but from 8-5-2010. It is an admitted fact that the relevant period in all these cases is prior to 8-5-2010." "The definition of agricultural produce is amply clear wherein the manufactured products and processed products are excluded from the definition of 'agricultural produce'. Further, it states that the agricultural produce does not include manufactured products such as sugar. When it is stated with such clarity that sugar would not fall within the definition of agricultural produce, the appellant cannot contend that raw sugar was eligible for exemption." "No positive act of suppression has been established by the Department with cogent evidence to conclude that there is suppression of fact on the part of the appellant... the penalty imposed under Section 78 with respect to both issues (Cargo Handling and GTA Services in respect of raw sugar) cannot sustain and requires to be set aside." Core principles established include:
Final determinations:
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