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2015 (6) TMI 545 - CESTAT MUMBAI

2015 (6) TMI 545 - CESTAT MUMBAI - 2015 (40) S.T.R. 533 (Tri. - 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 disp .....

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ree 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 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 .....

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ST/01 & 02/10-Mum, Appeal No. ST/29 & 71/10-Mum - Final Order Nos. A/1346-1349/2015-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 .....

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eva International Container Pvt Ltd. (NSICT) and second appellant M/s. JNPT 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 respe .....

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ce tax on this amount realized for 300 containers. It was held that the activity 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 Sec .....

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cargo is excluded from the definition of "cargo handling service", 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" .....

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ior to this date, service tax was chargeable on the gross amount charged by 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 ame .....

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into effect form 19.4.2006, that is after the period of dispute in the present 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 .....

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