TMI Blog2010 (6) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sharing of Income - Since the amount which has been received by the appellant is an amount on which service tax liability has already been discharged by M/s. CONCOR, the said amount cannot be held to be taxable under the category of port services in the appellant’s hand Cenvat Credit on banking services - amount of ST debited by bank - Since the documents were not produced and not explained before the adjudicating authority - the adjudicating authority to reconsider this issue afresh after following the principles of natural justice and come to a conclusion. - ST/237/2007 - 878/2010 - Dated:- 9-6-2010 - S/Shri M.V. Ravindran, P. Karthikeyan, JJ. REPRESENTED BY : Shri Jayashankar, A.K., Advocate, for the Appellant. Shri U. Raja Ram, JDR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This appeal is directed against the Order-in-Original No. 04/2007/ST dt. 6-3-2007. 2. The relevant facts that arise for consideration are that the appellants herein are holders of service tax registration for the services rendered by them under the category of Port services to various persons. They are discharging the service tax on the taxable value as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue of credit of Rs. 35,39,026/- may be remanded to the adjudicating authority, to come to a conclusion. II. As regards the disallowance of credit taken in respect of insurance charges, he would submit that amount involved is Rs. 3,04,450/- + Edu. Cess and Rs. 1048/- for hotel bills. He would submit that as regards Cenvat credit on the service tax paid on the hotel bills, they are not pressing the appeal. As regards the insurance charges, he would submit that the insurance charges are the charges which have been paid by them for the insurance of their goods and the employees in the port area. Hence the credit cannot be denied. He would rely upon the decision of the Division Bench of the Tribunal in the case of Stanzen Toyotetsu India Pvt. Ltd. v. CCE, Bangalore [2009(14) S.T.R. 316 (Tri.-Bang.)] III. It is the submission of the ld. Counsel that an amount of Rs. 3,93,893/- which is sought to be reversed by the adjudicating authority, is regarding the demand which is pertaining to the credit availed on the capital goods spares to the extent of 100% in the year of receipt. He would draw our attention to page 44 of the Order-in-Original for the findings. He would submit that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidences which have been produced today by them in respect of the disallowance of Cenvat credit availed on improper documents needs to be verified by the lower authorities . It is his submission that the credit taken on the service tax paid on the insurance charges is not eligible as these insurance were taken in the name of the individual employees of the appellant. It is his submission that the 100% amount of Cenvat credit taken on the capital goods is totally ineligible in the first year and hence credit amount availed by them during the first year is correctly sought to be reversed. It is his submission that though the assessee is eligible for the benefit of the balance 50% of the amount in the next year, he should have followed the proper procedure. It is the submission that the appellant is liable to pay interest for the amount which has been utilized by them by taking the additional credit of 50% in the first year itself. As regards the credit of service tax taken on the sale proceeds auctioned by the appellant, charges collected for pre-stage yard checking and amount received from CONCOR in respect of various storing containers, he leaves the issue to the Bench for comin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the individual employees who are working within the port area. We find that our decision in the case of Stanzen Toyotetsu India Pvt. Ltd. (supra) squarely covers the issue in favour of the appellant. Respectfully following the same, we set aside that portion of the impugned order wherein the adjudicating authority has confirmed the demand and imposed penalties and sought interest on the credit availed on the service tax paid on insurance charges. 8. As regards the reversal of alleged ineligible credit availed on the capital goods, we find that it is not in dispute that the appellant is eligible for Cenvat credit on the capital goods and spares. The only dispute on this point is that the appellant had availed 100% credit of the central excise duty paid on such capital goods and spares in the year of receipt of capital goods. We find that the show cause notice was issued in October, 2006 and the adjudication order has been passed on 6-3-2007. Even if we consider that appellant has wrongly availed 100% credit of the central excise duty paid on such capital goods and spares in the year 2005-2006, it cannot be disputed that they were eligible to avail 50% of the credit in succee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enters into port area. It is on record that the charges which are collected are in the nature of fees for making available the infrastructure to the exporters. These fees have nothing to do with the actual provisions of port services in respect of vessels or goods. This is created by the appellant for smooth flow of the customs examined goods into port area. To our mind, these charges collected at the pre-stage yard for the examination of the goods by the customs authorities would not get covered under the category of port services. The demand raised and confirmed under this head is not sustainable and we set aside the same. The impugned order to the extent it confirms the demand and imposed the penalty and demands the interest is set aside. 11. As regards the amounts received from CONCOR and service tax liability thereof, we find from the records that CONCOR vide letter dt. 22-8-2007 addressed to the appellant s Chief Financial Officer has informed as under :- This is to certify that Container Corporation of India Limited (CONCOR) has collected and remitted service tax on all bills raised in relation to the Imported cashew containers shifter from IGT Yard to CONCOR Yard for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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