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2015 (10) TMI 1736

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..... of revenue rejected – Decision made in the case of Mundra Port & Special Economic Zone Ltd. [2011 (9) TMI 93 - CESTAT, AHMEDABAD] and Gujarat Maritime board (supra) [2014 (7) TMI 972 - CESTAT AHMEDABAD] followed – Decided in favour of assessee. - Appeal No. ST/212, 222/10 - Final Order Nos. A/3354-3355/2015-WZB/STB - Dated:- 30-9-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) For the petitioner : Shri S.B. Gabhawalla, C.A. For the Respondent : Shri R.K. Das, Dy. Commr (AR) ORDER Per: M.V. Ravindran These appeals are directed against Order-in-Original No. 2/Commissioner /Goa/ST/25/09-10 dated 29.01.2010. Assessee as well as revenue are aggrieved by the order in original henc .....

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..... ed is only for the lease of vacant land. He would then draw our attention to the definition of renting of immovable properties services and submit that vacant land is excluded from the scope of the definition and the words immovable property needs to be considered accordingly. He would take us to the lease agreement entered by the appellant assessee and submit that it is for the lease of vacant land. He would submit that the structures on the vacant land are constructed by the lessee and are not the property of the appellant. It is his submission that the appellant charges separately for the facilities like harbour and charges service tax which is paid under the category of Port services. He would draw our attention to the judgement of the .....

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..... We have considered the submissions made at length by both sides and perused the records. 5.1 It transpires that the appellant assessee is port trust and renders the services classified under Port services and discharges service tax liability. During the material period in question, the appellant assessee has leased out vacant land for commercial use by private parties. This activity according to the revenue is covered under the service tax net as renting of property services while it is the claim of the appellant that they had given only vacant land which is excluded from taxable services. It is also undisputed that the appellant assessee has entered into long term lease agreement with the private parties. The private parties on executi .....

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..... ; (ii) land incidental to the use of such building or part of a building; (iii) the common or shared areas and facilities relating thereto; (iv) in case of a building located in a complex or an industrial estate, all common areas and facilities relating thereto, within such complex or estate, and (v) vacant land, given on lease or license for construction of building or temporary structure at a later stage to be used for furtherance of business or commerce; but does not include- (a) vacant land solely used for agriculture, aquaculture, farming, forestry, animal husbandry, mining purposes; (b) vacant land, whether or not having facilities clearly incidental to the use of such vacant land; (c) land used for educati .....

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..... in case, only vacant land is provided by the noticee under such agreement along with facilities like electricity, road, etc. the same may not amount to providing of infrastructure support for commerce or business. However, if more facilities which either individually or collectively be said to be supportive to the commerce or business of the second party are involved, the same would fall under business support services. As such, by examining each and every agreement, he has confirmed the demand in respect of six agreements. It is seen that the various activities held by the Commissioner having been provided under the business support services are in relation to Dredged channel, Marine and port facilities, access to main road, usage of .....

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..... e of grant of a licence to use the waterfront at the minor ports over which the State Government has a sovereign right. Such service, without any other attendant service for handling the vessels or goods, cannot be considered to be a prot service. Such a service is akin to the service of renting of an immovable property but that has nt been the case of the Revenue at any stage. Even if the taxable sentry of renting of immovable property had been invoked, no tax would have been payable at least till 2010 as renting of a vacant land was expressly kept out of tax net till 2010. 5.4 It can be seen from the factual matrix of the case in hand as also the ratio of the judgements, the activity of leasing out vacant land will not be covered und .....

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