TMI Blog2012 (9) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument showing the trade license issued by the port authorities in favour of one of the ship chandlers, no further evidence or material is produced to demonstrate the nature of activities carried on by such members. It would, therefore, be hazardous to express any legal opinion on the basis of such scanty material. Therefore Petition stands dismissed. - Special Civil Application No. 24997 of 2005 - - - Dated:- 15-6-2012 - Akil Kureshi and Harsha Devani, JJ. Y.H. Motiramani for the Petitioner Jitendra Malkan, Purvish J. Malkan and Darshan M. Parikh for the Respondent JUDGEMENT Akil Kureshi, J:- The petitioners have filed this petition praying for a direction to prevent the respondents from enforcing compliance of the provisions of the Finance Act, 1994 and from levying and demanding service tax in respect of activities undertaken by the members of petitioner No. 1-Association. Facts in brief are as follows:- 2.1 Petitioner No. 1 is an association of ship chandlers. Petitioners Nos. 2 and 3 are individual agencies undertaking certain tasks with respect to vessels beached at major and other ports in the State. Members of petitioner No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner-association referring to two circulars of the Central Board of Excise and Customs dated July 1, 2003 and November 10, 2003 and stated that by virtue of clarification issued in such circulars, the activities carried on by the ship chandlers would fall within the purview of service tax and they are liable to pay such tax. We may notice that circular dated June 20, 2003 is one granting exemption to so much of the value of all the taxable services as is equal to the value of goods and materials sold by the service provider to the recipient of service from the service tax leviable thereon under section 66 of the Finance Act, 1994. The circular dated 20th June ,2003 (brought into effect from July 1, 2003) is a clarificatory circular issued by the CBEC regarding levy of service tax on ship repair, during the dry docking by the person duly authorized in that behalf by the port authorities. In this respect, it was clarified that as the matter has been examined, port services mean any service rendered by port or any person authorized by them, in any manner in relation to a vessel or goods. Thus, in all services rendered, including during dry dock and repairs to the ship, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the parties and having perused the documents on record, we may divide our inquiry with respect to service tax exigibility of the members of the petitioner-association in two parts. First would be a part where the members who may be providing the repair services to the vessels in addition to performing all other tasks of ship chandlers. The other would be class of members who would not be undertaking any repair work of the vessel but providing only provisions in the capacity of ship chandlers. From the dictionaries and material available on the net, we gather that ship chandlers deal in goods typical for fuel-powered commercial ships, such as oil tankers, container ships, bulk carriers, etc. They supply the crew's food, ship's maintenance supplies, cleaning compounds, rope, etc. The principal advantage for the ships crew using a chandler is that they do not have to find stores in the town where they have landed or deal in local currency. Essentially, they supply food, vegetables, milk, drinking water for the crew of the ship, etc. It is not in dispute that many of the members of the petitioner-Association in addition to supplying such provisions for the crew arid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port service as defined under section 65(82) is sufficiently wide to include such services. In our opinion, the members of the petitioner-association who have been authorized by the port authorities to provide such services can be stated to be rendering service in relation to a vessel. The words in any manner would further go to show that the Legislature intended to make the definition wide to include range of services which may be provided in relation to a vessel. Repair work of vessel would undoubtedly be in relation to the vessel and therefore would be covered under the definition of port service under section 65(82) of the Act. The counsel for the petitioner, however, contended that the term authorized used under section 65(82) would include only those services which the port authorities are obliged to undertake under the Major Port Trusts Act or such other statute which are delegated to other agency, He would contend that if such service is not exclusively to be undertaken by the port authorities, any permission to carry out such service granted to the members of the petitioner-Association would not be included within the expression authorized by such port as us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end to us. Firstly, the authorization of the port has undoubtedly been granted in the present case. We do not find that such authorization must relate to those activities which the port is either obliged or exclusively required to perform under the Major Port Trusts Act, 1963. Further, in our opinion, the term in relation to a vessel must be seen as to expanding the scope of coverage of the port service and cannot be confined to those services which are in relation to movement of vessels so as to exclude from its ambit the work of repair of vessels. Board of Trustees of a port is constituted under section of the Major Port Trusts Act, 1963. Under the said Act, the Board has certain duties to perform and enjoys certain powers to perform such duties. Chapter V of the said Act deals with works and services to be provided at ports. Section 35, which is part of the said chapter, pertains to power of the Board to execute works and provide appliances. Sub-section (1) of section 35 provides that the Board may execute such works within or without the limits of the port and provide such appliances as it may deem necessary of expedient. Sub-section (2) of section 35 provides that such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not necessarily be in respect of only those functions which the Board, itself was required to perform under the Act. With respect to the members of the petitioner-Association who are engaged in repair of work of vessels, in our opinion, the authorities are justified in insisting that they must register themselves and also pay service tax as may be payable. With respect to those members who do not provide any such repair work, but provide exclusively the provisions to crew and for the utility of the vessel, we are of the opinion that material is scanty for us to express any opinion thereon. The petitioners have-approached this court at a stage when the Commissioner through correspondence insisted on their registration and no further inquiry was made. In fact, the petitioners have also not produced any material either before the Commissioner, or before us with respect to the exact nature of activities carried on by them. We may recall that before the Commissioner, the petitioners only wrote a small letter in the nature of representation requesting to drop the demand for registration. Before us also, except this singular document showing the trade licence issued by the port aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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