TMI Blog2011 (3) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of these acts are not applicable to service tax. Whether stevedoring in a major or minor port is a "port service" within the meaning of this expression defined under section 65(82) of the Finance Act, 1994 - If stevedoring service is accepted to be a service not provided by "port" or "other port", the term "port service" defined by 1994 Act shall defeat the purpose of the service tax law - The statutory definition suggesting the service provided "in any manner" serves the purpose of serving the clients of stevedore in relation to goods or services indirectly through stevedores - Decided against the assessee Whether transportation of cargo after its unloading from a vessel, to a place of storage within the port area held to be services ancillary to stevedoring and whether, ipso facto, these, services can be classified as "port services" under section 65(82) ibid - The services provided in any manner directly or indirectly by a port or other port bring such services to the fold of port services for taxation under the category of port services - Facilities and infrastructure inside a port or other port serve the purpose of a port or other port - Decided against the assessee - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther repairing, chipping, cleaning and painting of the vessels of the Coast Guard, Naval Dock and ONGC at Mazagon Docks Ltd. during the period 16-7-2001 to 30-9-2003 were "port service". Tribunal in paras 10 and 11 of the order found and held that the work required to be executed by the Board of the Port Trust u/s. 35 of the Major Port Trusts Act, 1963 (hereinafter referred to as "the 1963 Act") is to provide the facility like dry dock etc. to carry out the repairs or overhauling of vessels etc. and not the repair job itself. It was also held that ship breaking activities and ship manufacturing activities may also be done in port area, for which purposes facility may be provided by the port, but that will not make the same as "port service". Revenue has carried the matter to Hon ble High Court of Bombay being aggrieved by the order of Tribunal. Hon ble High Court has admitted appeal of Revenue on 16-9-2009 registered as Appeal case No. 67/2009 framing following question of law for answering as reported in 2010 (17) S.T.R. J57 (Bom). "Whether in the facts and circumstances of the case and in law Tribunal is justified in holding that the services of repairing, chipping, cleaning, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. In view of this, this appeal is dismissed. No Costs". Observations of referring Bench 2. In para 9 of the referral order, the referring Bench noticed that judicial discipline was followed by different Benches of the Tribunal agreeing with the decision in Homa Engineering Case. Those cases were reported as New Mangalore Port Trust v. Commissioner, 2006 (4) S.T.R. 448 (Tri.-Bang.), Western (I) Shipyard Ltd. v. Commissioner, 2006 (3) S.T.R. 639 (Tri.-Mum.), BBR (India) Ltd. v. Commissioner, 2006 (4) S.T.R. 269 (Tri.-Bang.) Konkan Marine Agencies v. Commissioner, Kin-Ship Services (India) Pvt. Ltd. v. Commissioner, Mazgaon Dock Ltd. v. Commissioner, 2008 (11) S.T.R. 271 (Tri.-Mumbai) and Western India Shipyard Ltd. v. Commissioner, [2008] 15 STT 371 (Mum.-CESTAT). 2.1 While dealing with the matter in their hand, the referring Bench in para 7 of its order dated 26-8-08 in Western Agencies Pvt. Ltd. s case reported in 2008 (12) S.T.R. 739 (Tri.-Chennai) noticed certain facts in Homa Engineering Works v. CCE, as under :- "7 ......the party was engaged in the activity of repairing, chipping, cleaning and painting of the vessels of Coast Guard, Naval Dock and ONGC within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties were not covered by the services specified under section 42(1) of the Act to be performed by the Port or a person authorized by it. Accordingly, it was argued that the charges collected by the assessee from their customers for repairing etc. of the vessels were not exigible to service tax under the head, "port services". This argument was accepted by the Tribunal, which also held that the clarification issued by the CBEC in Circular No. 67/16/2003-S.T., dated 10-11-2003 was not in accordance with the law." [Emphasis supplied] 2.2 The referring Bench in Para 8 of its order noted that decision in Homa Engineering case was followed by another co-ordinate Bench of the Tribunal in Velji P. Sons (Agencies) Pvt. Ltd. v. CCE, Bhavnagar - 2007 (8) S.T.R. 236 (Tri.- Ahmd.). The question arose for consideration in that case was whether the acts performed by a Customs House Agent (CHA) within the limits of minor ports of Pipavav (Administered by Gujarat Pipavav Port Ltd.) during the period July, 2003 to January, 2005 were to be classified as Port Services for the purpose of payment of service tax. Discussing the factual aspect of the matter and also noticing that the coordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of dispute ought not to have been examined with reference to any thing contained in the Major Port Trusts Act. If necessary, only the relevant provisions of the Indian Ports Act, 1908 were to be invoked. With great respect to the Bench which dealt with Velji case, we find that the decision in that case was rendered with reference to various provisions of the Major Port Trusts Act, which were not applicable at all. Further, the view taken in that case to the effect that the licence issued by the Port was not recognizable as authorization for purposes of section 42 of the above Act also does not appear to be correct. We note that, in the case of Konkan Marine Agencies (supra), the Bench accepted the appellants plea that the stevedoring licence issued to them by the Mangalore Port Trust was a permission to undertake stevedoring operations within the port premises. In the instant cases also, the assessees were undertaking stevedoring and allied operations within the respective port areas on the strength of licences issued by the Port authorities, and they have no case that they had been undertaking the said operations unauthorizedly . They can only be held to have been authorize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rized by the Port, be charged to service tax as "port services". We have not found any corresponding provision in the Indian Ports Act specifying services to be provided by a minor port or a person authorized by such Port. (Section 35 of the Indian Ports Act, which provides for charging of fees by a minor port for pilotage, hauling, mooring, remooring , hooking, measuring and other services rendered to vessels, however, seems to indicate that a minor port can get these operations undertaken by a licensee or authorized person). Would it mean that, in respect of minor ports - our country has as many as 187 minor ports (as per the records of the Ministry of Shipping, Govt. of India) as against only 12 major ports - in this country, no activity/operation (including stevedoring) is liable to be exigible to service tax under the head "port services" defined under section 65(82) ibid? Certainly, the law of service tax cannot be expected to have envisaged such an anomalous situation. It is a cardinal principle of statutory interpretation that, when the language of a statute is capable of two interpretations, one of which is reasonable and the other unreasonable, the court should hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration. Loading and unloading of cargo (other than export cargo) are taxable services classified as "cargo handling service" under clause (23) of section 65. When these operations are done in a port or other port , they become "port services" classified under clause (82) of section 65. Applying section 65A(2)(a) to this case, cargo handling service provided by any person within the limits of a major or miner port shall have to be classified as "port service", being more specific in relation to port. Thus, by strict construction of the provisions of the Finance Act, 1994 as advocated by the ld. counsel, we think, we are able to decipher the scope of "port service" defined under section 65(82) ibid and accordingly to fix the tax liability. "Port service" means any service rendered by a port or other port or any person authorized by such port or other port, in any manner, in relation to a vessel or goods. None of the assessees before us has pleaded th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the referral order clearly brought out that a Major Port is defined by section 2(q) of the 1963 Act and "other port" was defined in section 65(81) of the Finance Act, 1994 at the relevant point of time meant the port as is meant by section 3(4) of Indian Ports Act, 1908 (hereinafter referred to as the 1908 Act") to be called as other port . The referring Bench committed error to hold that services provided by both the ports i.e. port defined by the 1963 Act and the 1908 Act has no difference. 5.2 According to Ld. Sr. Counsel, matter of classification having been resolved by Hon ble High Court of Karnataka in CCE v. Konkan Marine Agencies 2009 (13) S.T.R. 7 (Kar.), reference to Larger Bench need to be answered in the light of said judgment following decision of Hon ble High Court of Bombay in CIT v. Godavaridevi Saraf - (1978) 113 ITR 589 (Bom). When Apex Court dismissed Appeal of Revenue in Velji s case, no reference to Larger Bench should have been made. Reference was invited to section 65(82), 65(81) and 65(76) of the 1963 Act to place that "authorised person" appearing in section 65(82) of the 1994 Act shall have same meaning as that is in section 42(3) of that 1963 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,13,14 of 2007 (9) SCC 55. So also he relied on paras 16 and 17 of 1988 Supp. SC 30. According to him the amendment made to law after 1-7-2010 can be read as retrospective. 5.4 All other counsels appearing different appellants adopted arguments of Ld. Sr. Counsels. 5.5 Shri K.S. Venkat Giri, ld. Counsel submitted that a non-taxable service cannot be taxed under the umbrella of port service. Stevedoring being a labour supervision work, major ports do not provide such service for which port service does not include stevedoring service. The meaning of the port as that has been assigned in the 1963 Act being adopted for levy of service tax for the services provided by port, the provisions of the said Act shall also be applied to interpret taxing provisions under the 1994 Act. The Madras Port Trust Regulation says that stevedores do not provide port service. Drawing attention to section 42 of the 1963 Act and Tamil Nadu Maritime Board, 1995 his prayer was that reference should be answered in favour of the assessee. He further argued that the activities enumerated by the referring Bench in question (c) are not taxable activities under other provisions of Finance Act, 1994 for which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.T.R. 7 (Kar.). Service Tax Credit Rules, 2002 says that stevedores get service of Port Trust to make the same available to their clients. 6.1 Ld. JCDR Shri B.B. Agarwal appearing on behalf of the Revenue in nine cases relating to stevedoring and one case relating to ship repair argued that the reference is maintainable. According to him dismissal of Revenue s appeal in Velji s case does not provide any support to the appellants because facts of that judgment was on a different premises and Hon ble Supreme Court has not dismissed Revenue s appeal on merit since Konkan Marine judgment is awaiting scrutiny of Apex Court. Hon ble High Court of Karnataka in Konkan Marine case has not answered the question as to what is port service and the questions referred in referral order. According to him the amendment made by Finance Act, 2010 has a different object and that was not the law before the referring Bench to test the facts of the cases under reference. Therefore, amendment made by Finance Act, 2010 is out of question and has no relevance for the present reference. 6.2 Shri Agrawal, learned JCDR submitted that the Hon ble Supreme Court while dismissing Revenue s Civil Appeal did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having been subjected to judicial scrutiny. 6.5 Countering the arguments of appellants that since the Konkan case, which followed the Velji ratio, stands approved by the Hon ble Karnataka High Court, hence the questions referred to this Larger Bench stand concluded against Revenue, shri Agrawal urged that this contention is devoid of any merit, for two reasons. First, the High Court decision in Konkan had turned on the limited aspect that the cargo handling service in question (which was proposed to be classified as Port service because of being rendered in Port) related to export goods and hence no tax could be charged. According to Revenue, specific questions before the Larger Bench is as to whether the provisions of the 1963 Act except those specifically mentioned in the 1994 Act can be pressed into service for interpreting the expressions under the 1963 Act were not per se discussed in that case. He urged that para 18 of the HC decision in Konkan has to be seen in that context. Though the Hon ble HC has taken note of the provisions of 1963 Act, but the specific question as to whether the services impugned in that case were "port service" or not, has not been answered. The li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit......" Also reference was made to Black s Law Dictionary for the word "license" and to the Chambers dictionary for "authorize". Every statute serving its own purpose one does not conflict with the other. Purpose of the three statutes under consideration by Larger bench is as under : Act Preamble The Major Port Trusts Act, 1963 An Act to make provision for the constitution of port authorities for certain major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith The Indian Ports Act, 1908 An Act to consolidate the Enactments relating to Ports and Port-charges. The Finance Act, 1994 An Act to give effect to the financial proposals of the Central Government for the financial year 1994-95 6.8 Further argument of Shri Aggarwal was that taxing authority act under the 1994 Act and they are not required to administer ports. Therefore legislature has only required the taxing authorities to examine whether a service provided relates to vessels or goods. If they are satisfied that the services provided in any manner is in relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lorries, traffic appliance charges, weighment charges for goods; (iii) Railway haulage charges for rail-borne goods, local haulage and storage; (iv) Container handling charges consisting of import, export and transhipment wharfage on containers, equipment charges for handling of containers, container storage charges; (v) Labour charges. (2) As per Circular No. B-11/1/2002 dated 1-8-2002, Cargo handling services are provided in the port also. Port services cover any service provided in relation to goods or vessels by a port or a person authorized by the port. This includes the cargo handling service provided within the port premises. Therefore to this extent there may be an overlap in cargo handling service and the port service. However since port services covers all the service in relation to goods and vessels and therefore more specific to port, the service provided in a port in relation to handling of goods would be appropriately covered under port service and no separate levy will be attracted under the category of cargo handling agency service. Similar would be the case in respect of service provided for storage of goods in the port premises. Revenue s content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertakes to have in his employment such minimum staff and have in his possession such minimum gear as may be prescribed by the Chairman for undertaking stevedoring efficiently; ** ** ** 5. Duties and Responsibilities of A Stevedore : During the currency of a stevedoring licence issued by the Chairman, the following obligations and responsibilities shall be fulfilled by the stevedores, viz :- (1) The Stevedore shall be responsible for the due observance and performance by all staff and labour employed by him during the operation of landing and shipping or transhipping goods or work identical thereto of the provisions in all the relevant Acts, Rules, Regulations and Orders relating to such operations for the time being in force. ** ** ** (9) Every Stevedore shall employ at least one experienced foreman in each shift to superintend the Stevedoring operations in every vessel. ** ** ** (16) The Stevedore shall take immediate and effective steps to improve the performance whenever the output is below the prescribed standards. (17) The Stevedore shall make adequate arrangements for ancilla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o them after assessing their suitability, capacity and financial stability for undertaking the jobs and that the licence can be cancelled in the event of unsatisfactory performance also goes to show that it an authorization. Thus a stevedore is authorized by the port. In summary, he contended that the question (b) deserves to be answered in favour of Revenue. 6.13 Submissions of Revenue on third question Arguing on the third question in the referral order, Sri Agarwal submitted that although different appellants have followed different invoicing patterns, but in no case has the client who engaged a particular stevedoring company for the so-called "pure" stevedoring operation of loading cargo from the vessel to the wharf (or, the vice versa), engaged another person or firm for the impugned operations of inter-carting etc. required to be performed in the port area after such unloading. In every case, the main stevedore only has done the job, though he may have sub-contracted it to someone else. It is a package deal. Hence, the operations in question are dearly "ancillary" to the "stevedoring" operation. The Stevedoring Regulations also make this position amply clear. Further, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench and no other authority is empowered to make reference. 8.2 Hon ble High Court of Gujarat in the case of Colourtex v. Union of India - 2006 (198) E.L.T. 169 (Guj.) has held that the Larger Bench can hear the questions referred without deriving any independent jurisdiction and has no power to decide the appeal in entirety. It has neither appellate, nor review nor Revisionary jurisdiction, but has advisory and consultative jurisdiction derived from the reference made by the President of the Tribunal. Only upon reference of the matter by the President, the Larger Bench has locus standi to exercise such jurisdiction. It has neither power to record evidence nor power to re-appraise or re-evaluate evidence in absence of Appellate or Revisionary jurisdiction. It has to act within the ambit of the facts settled by the Division Bench. It also does not decide the lis between the parties. 8.3 According to the ratio laid down by the Apex Court in Paras Laminate s case (supra) where members of a Bench find themselves unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the matter directly to a Larger Bench. Neither any statutory provision gives such power to Division Bench or Single Member Bench to do so nor there is any judicial pronouncement vesting such power upon the Division or the single Member Bench. This is essentially to maintain judicial discipline in the administration of justice by the Tribunal. (5) Even in cases where the Division is faced with a situation of having already delivered two different orders on the same issue taking by two different views by two different Benches, the Bench facing such a situation has to formulate the issue which is required to be referred to the Larger Bench and thereupon ask the registry to place the matter before the President to do the needful. 8.5 Aforesaid principles are in consonance with basics structure of law to maintain judicial discipline and judicial decorum. Tribunal being a creature of statute and subordinate judiciary is governed by Apex Court rulings and rulings of Hon ble High Courts and assists higher judiciary. The Larger Bench neither sitting on appellate nor revisionary jurisdiction but merely acting on advisory or consultative jurisdiction has been formed to answer the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger not Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47 Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47 Rule 1 of the C.P.C- act as guidelines) are not necessarily the same on which this court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the court, tribunal or forum whose order forms the subject matter of petition for special leave to review its won. Order if grounds for exercise of review jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068). 43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage. 44. To sum up our conclusion are : (i) Where an appeal or revision is provided against an order passed by a court. Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is the only order binding as res Judicata in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 of the C. P. C." [Emphasis supplied]. 8.7 With great respect to the law laid down by the Hon ble Supreme Court, the questions referred by the referral order noticing to be different from Velji s case, no lis between the parties to the reference is decided by advisory and consultative jurisdiction of this Larger Bench. 9. Legislations with different scope are not pari materia statutes Answer to question (a) 9.1 All the matters before the referring Bench for answer related to pre 2010 amendment years. Economy has already experienced incidence of service tax for more than a decade. Taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature to be in relation to vessel or goods provided "in any manner" either by the port or other port or "any person authorised" by such port or other port. That left no ambiguity under the 1994 Act to draw conclusion what that is port service means when any service provided by a port or other port or any authorised person is in relation to vessel or goods. Services touching these two objects are safely classifiable as port service. This is the only rule of classification of such service. The provisions of 1963 Act or the 1908 Act do not prevail over taxation under the 1994 Act in absence of legislative mandate except the definition of the term "port" or "other port" as defined by those two Acts for the purpose of levy of service tax. Purpose of 1994 Act being clear and that is for taxation of taxable services provided by a "port" or "other port" or persons authorised, "in relation to vessel or goods" it is not required to borrow any other provision from the law dealing with port administration. 9.4 Pleading of the assessees was that the provisions of the 1963 Act and the 1908 Act govern the 1994 Act to determine what port service means. Reading of the provisions relating to taxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et up ports and administer such ports, the 1994 Act, is a self contained code and has made provisions to prescribe incidence of service tax on any service provided by a port or other port or persons authorised by such port while such service relate to vessels or goods. A clear mandate of 1994 Act no way disturbs to understand the object of gathering Revenue, using the words "any service" provided by a port or other port. Thus by necessary implication nothing can be gathered from any of the port laws except to the extent of adoption to mean the term "port" or "other port" from the 1953 Act or 1908 Act as the case may be. Service provided by port relating to vessel or goods submit for classification under the category of "port service" for levy of service tax. Unambiguously provisions of the 1994 Act in no uncertain terms intend to tax any thing not authorised by law. The exhaustive definition of the term "port service" limits the scope to take assistance of either 1963 Act or 1908 Act except to the extent expressly permitted by the 1994 Act. 9.6 The exhaustive and restrictive definition of the term "port services" was provided by Section 65(82) the 1984 Act has a wide amplitude to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07) 3 SCC 124 (para 22). The precise, restrictive and exhaustive definition of the term "Port services" did not intend to borrow meaning of the said term from any other legislation for the obvious reason that there is no intendment or equity about tax. Thus : (i) "Any" service provided by a "port" or "other port" became taxable as port service; (ii) Port service provided in any manner and even by "any person authorised" by a port or other port came to purview of taxation; and (iii) The port service provided in relation to vessels or goods is subject matter of taxation. 9.8 It may be stated that the object of interpretation of a statute is to discover the intention of the Parliament as expressed in the Act. The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute, considering it as a whole and in its context. That intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must, if they are plain and unambiguous, be applied as they stand. Legislature exercised wide latitude not only to prescribe varied range of services provided by a port o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d effect (scope) of the arbitration agreement." [Emphasis supplied] 9.11 It is well settled that in matters of taxation laws, the court permits greater latitude to pick and chose objects and rates for taxation and has a wide discretion with regard there to. Reference may be made to the decision of Mafatlal Industries Ltd. and Others v. Union of India and Others, (1997) 5 SCC 536. In para 343 at page 740, Hon ble Supreme Court held as under: ".....In the matter of taxation laws, the court permits a great latitude to the discretion of the legislature. The State is allowed to pick and choose districts, objects, persons, methods and even rates for taxation, if it does so reasonably. The courts view the laws relating to economic activities with greater latitude than other matters." [Emphasis supplied] 9.12 Learned Sr. Counsels proposition was that provisions of 1963 Act and the 1908 Act are to apply to interpret the provisions of 1994 Act is inconceivable because 1994 Act serves different purpose than the Port Trust Law. Accordingly, reliance of Appellant on Sirsilk Ltd. v. Textile Committee, reported in AIR 1989 (S.C.) 317 is not profitable. The Tribunal being a creature of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring in the definition of clearing and forwarding agent cannot be isolated or the activity of clearing and forwarding operation and an agent engaged only for procuring purchase order for the vendor on commission basis does not engage in any of the activities connected with clearing and forwarding operations directly or indirectly. The present reference is on the premises of the question referred to it on different context in the Referral Order. Therefore, the citation made by the ld. Sr. Counsel was not profitable to him except the meaning of the term "in any manner". Reliance was placed on the Larger Bench decision of Tribunal in the case of Larsen Toubro Ltd. - 2006 (3) S.T.R. 321 (LB). The expression directly or indirectly and in any manner was subject matter of interpretation in that case. The Larger Bench was of the view that if the activity is anyway connected to the taxable services cannot remain beyond scope of taxation. Ld. Sr. Counsel also relied on para 29 of the decision of the Apex Court in the case of Co-operative Company Ltd. v. Commissioner of Trade Tax U.P. - (2007) 4 SCC 480 to submit that 2010 amendment shall be read as retrospective. Having noticed from the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1963. 10.2 In the course of hearing before Larger Bench, learned Counsels for assessees heavily relied on the Judgment of Konkan Marines case reported in 2009 (13) S.T.R, 7 (Kar) to buttress their claim that reference is to be answered in favour of assessees. Analysing the provisions of law under Section 42 of the Major Port Trust Act, 1963, Hon ble High Court of Karnataka in para 7 of the judgment reported in 2009 (13) S.T.R. 7 (Kar.) held that some of the services mentioned in section 42 of the 1963 Act may not be exhaustive are to be performed by the port itself but in case port is desirous of rendering any of the services mentioned in the Section 42 or any other service in addition to the same, port can authorise to give it to any other person, with the previous sanction of the Central Government. This is the mandate under Section 42(3) of the Major Port Trust Act. Exercising this power, New Mangalore Port Trust issued a Stevedoring Licence in favour of the respondent assessee in Konkan Marine Agencies case. Section 42 of Major Port Trusts Act, 1963 referred to in the judgment reads as under : "Section 42 (1) A Board shall have power to undertake the following services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of which he has taken charge shall, subject to the other provisions of this Act, be that of a bailee under Sections 151,152 and 161 of the Indian Contract Act, 1872. (7) After any goods have been taken charge of and a receipt given for them under this section, no liability for any loss or damage, which may occur to them, shall attach to any person to whom a receipt has been given or to the master or owner of the vessel from which the goods have been landed or trans-shipped." [Emphasis supplied] 10.3 The term "port service" defined by the 1994 Act bringing any service provided by a "port" or "other port" "in relation to vessels or goods" to the service tax net does not make any difference if such service is also provided through any person authorised by the port or such port. If stevedoring service is accepted to be a service not provided by "port" or "other port", the term "port service" defined by 1994 Act shall defeat the purpose of the service tax law. The facilities provided by a port to render the stevedoring service performable brings such service to the scope of service tax. The statutory definition suggesting the service provided "in any manner" serves the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a result, varied nature of facilities or infrastructure is provided in port territory so that service recipient does not go out of such port territory to find source of service desired. Facilities and infrastructure inside a port or other port serve the purpose of a port or other port. Therefore, the plea of the assessees that the different cluster of services listed in question (c) of the referral order is beyond the scope of taxation under the port services, is unacceptable. Accordingly question (c) can also be answered in favour of the Revenue and against assessee. ORDER 12. In the light of the aforesaid discussions, the questions referred to Larger Bench may be answered as under : (a) Provisions other than clause (q) of Section (2) of the Major Port Trusts Act, 1963 or any provisions other than clause (4) of Section (3) of the Indian Ports Act, 1908 are not applicable to interpretation of "port service" defined under Section 65(82) of the Finance Act, 1994 in absence of statutory intention thereof. (b) Stevedoring in a major or minor port is a "port service" within the meaning of this expression defined under Section 65(82) of the Finance Act, 1994 following judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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