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Commissioner of Central Excise, Raigad And Others Versus Jawaharlal Nehru Port Trust Pvt Ltd, Nhava Sheva International Container Pvt Ltd And Others

2015 (6) TMI 545 - CESTAT MUMBAI

Penalty u/s 76 & 78 - Classification of service - Valuation - Held that:- Irrespective of the fact whether the activity is classified as "port service" or as a "Cargo handling" service, the stated policy of the government is to exempt exports from levy of any tax. But the fact whether almost the entire cargo pertains to export containers is not discussed in the order of the Commissioner although the learned AR did not dispute the statement made by the counsel before the bench.

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l difference to the provisions of valuation. Before the amendment on 18.4.2006, the gross amount charged by the appellant would be none other than the amount for which invoice is raised. There is no other consideration flowing from the receiver to the appellant. The whole transaction can be read as a contract that provides for charging only on the basis of the net number of containers handled in excess by the appellant. It must be noted that during the relevant period there was no valuation Rule .....

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1349/2015-WZB/STB - Dated:- 13-5-2015 - M V Ravindran, Member (J) And P S Pruthi, Member (J),JJ. For the Appellant : Shri R K Das, Comm (AR) For the Respondent : Shri L Badrinarayan & Shri S S Gupta, Advs. ORDER Per: P S Pruthi: Appeals arise out of the impugned order-in-Revision No. 04/SR(04R)Commr/RGD/09-10 dated 30.10.09 confirming the demand of service tax of ₹ 25,16,085 and imposing penalties under sections 76 and 78 of the Finance Act 1994 for the period Oct 01 to Feb 2006 agains .....

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T are two container handling terminals both providing port services. The containers are brought to M/s JNPT and M/s NSICT on rail by the Container Corporation of India. Separate rail tracks are dedicated for both the terminals. However, sometimes the containers which are supposed to be off loaded at JNPT are wrongly brought to the premises of NSICT and vice versa. The wrongly offloaded containers are relocated by the respective terminals to the other. The cost of relocation is borne by either of .....

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tivity of relocation of containers is covered under the category of 'port services'. It was further held by the Commissioner that the service tax is payable on the charges for total number of containers relocated by NSICT to the JNPT i.e. 1000 containers and not only on charges for 700 containers, after adjusting the number of containers of the NSICT handled by JNPT. In other words, Service tax is payable under Section 67 on the gross value payable on the total value of containers reloca .....

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;, their activity comprising almost entirely of handling of export containers, service tax is not payable at all. He relied on the Karnataka High Court judgement in the case of Commissioner versus Konkan Marine Agencies - 2009 (13) STR 7 (KAR). Revenue has not shown any judgement of High Court to the contrary. Nevertheless we find that irrespective of the fact whether the activity is classified as "port service" or as a "Cargo handling" service, the stated policy of the gover .....

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y the service provider for service provided. After the amendment on 18.4.2006, explanation (c) to section 67 was introduced which states that the gross amount charged will include payment of cheque, credit cards, deduction from accounts, credit or debit notes, or book adjustment. We do not agree with Revenue that the amendment to Section 67 has not made any material difference to the provisions of valuation. Before the amendment on 18.4.2006, the gross amount charged by the appellant would be no .....

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esent case. Therefore resort cannot be had to these Rules for the determination of value. In this view of the matter the taxable value on which service tax is chargeable must be considered as the invoice raised for the service provided. 4.2 The learned AR argued strongly that this is not a case of revenue neutrality because two different entities are involved, Commissioner relied on Jay Yuhshin Ltd. 2000 (119) ELT 718. We do not agree with him. Let us for a moment see the consequence if the appe .....

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