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2024 (3) TMI 1136 - AT - Service TaxNon-payment of service tax - Customs House Agent and Storage and Warehousing Services - non-payment of service tax on the value of services rendered on account of ground rent of empty containers - non-payment of service tax on services rendered in respect of handling of empty containers under the category of Storage and Warehousing Services - HELD THAT:- Due to the plea of the appellant being eligible of cum tax benefit that this Tribunal vide Final Order No. 56944/2013 dated 04.07.2013 had remanded back the matter. It is observed that subsequent to remand, the benefit of cum tax has been given to the appellant, accordingly, the entire demand on the aforementioned first issue was absolutely dropped. However, the demand on second count is confirmed holding the activity done by the appellant to be called as storage and warehousing services. It is observed that there is no denial about discharge of service tax by the appellant with respect to handling of empty containers which were stored in the appellant’s area or were warehouse. The demand is with respect to such empty containers which were handled prior reaching the appellant’s storage area/warehouse. The issue therefore is as to whether the said activity can be called as the part of taxable service “Storage and Warehousing”. No doubt Circular No. 60/9/2003-ST dated 10.07.2003 clarifies that handling of empty containers would be covered within the scope of Storage and Warehousing Services. However, for the applicability of this circular the goods/empty containers should first have been stored or warehoused and should be handled within the said warehouse or the storage space. Apparently and admittedly, the same is not the case for the impugned demand. Hence the appellant’s activity of handling containers cannot be called as taxable activity of storage and warehousing. The handling of the containers which were never stored or warehoused since is not covered in the taxable activity of storage and warehousing, the service tax on the amount received for handling of nonstored/ non-warehoused empty containers is wrongly demanded and thus is held to have wrongly been confirmed. The activity of handling of container cannot to be covered under the taxable activity of cargo handling as cargo handling service also. This activity is essentially a service in relation to merchandise - The Circular No. B11/1/2002-TRU has explained that empty containers cannot be treated as cargo. In light of these observations, the activity in question cannot even be called as the taxable activity of Cargo Handling Service. The order under challenge for the said reason is liable to be set aside. The order under challenge is held not sustainable. Same is accordingly therefore set aside - Appeal allowed.
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