2015 (8) TMI 397 - AT - Service Tax

Denial of refund claim - Port services - Notification No. 41/2007-ST dated 06.10.2007 - Held that - in the schedule to Notification No. 41/2007-st port services classified under Section 65 (105) (zn) ibid are mentioned. It implies that if the service provider has actually paid service tax under Section65 (105) (zn)ibid the said notification exempts the same by way of refund if it is received by an exporter and used for export of goods. It is not open to the service recipient to question the classification of the service received by it as the issue of classification is only between the service provider and the jurisdictional service tax authorities and so as per the said Notification the condition is sufficiently fulfilled for granting the refund of such service tax. It is seen that the only reason for Revenue to file appeal was that in the case of velji P Sons (2007 (8) TMI 35 - CESTAT AHMEDABAD) CESTAT held the activities of handling stevedoring loading unloading etc. provided in the port area as not falling under Port services. However the said judgement no longer represents good law in the light of the CESTAT Larger Bench decision in the case of Western Agencies Pvt. Ltd. Vs. CCE Chennai 2011 (3) TMI 528 - CESTAT CHENNAI (LB) - Decided against Revenue.

Summary

Issues:
1. Refund of service tax under the category of port services in terms of Notification No. 41/2007-ST.
2. Classification of activities like handling, stevedoring, loading, unloading under port services.
3. Legality of permitting refund based on misclassification by the service provider.
4. Applicability of CESTAT judgments on classification of port services.

Analysis:
1. The respondent, a manufacturer and exporter of soya refined oil, filed refund claims under Notification No. 41/2007-ST. The primary adjudicating authority partially approved the refunds. The Commissioner (Appeals) allowed refund of service tax paid under port services classified under Section 65(105)(zn) of the Finance Act, 1994, based on the schedule to the said Notification exempting such refunds for exporters using it for goods export.

2. The Revenue appealed, arguing that activities like handling, stevedoring, loading, unloading do not fall under port services as per CESTAT precedent in Velji P Sons case. However, the Tribunal noted that the issue of classification is between the service provider and tax authorities. The CESTAT Larger Bench decision in Western Agencies Pvt. Ltd. Vs. CCE clarified that stevedoring in a major or minor port is a port service. Additionally, activities like intercarting, storage, blending of cargo within the port area can be considered ancillary to stevedoring and classified as port services under Section 65(82).

3. The Tribunal dismissed Revenue's appeal, emphasizing that the CESTAT Larger Bench decision supersedes the earlier judgments. It concluded that the impugned orders allowing the refund were legally sound, as per the clarification on the classification of port services provided by the Larger Bench decision.

4. In summary, the Tribunal upheld the orders-in-appeal permitting the refund of service tax under port services, relying on the provisions of Notification No. 41/2007-ST and the clarification on classification provided by the CESTAT Larger Bench decision. The appeal by the Revenue was dismissed, affirming the legality of the refund based on the service provider's classification under Section 65(105)(zn) ibid.