TMI Blog2007 (8) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant, who is a Customs House Agent, by treating the said services provided by him as Port services. Further, penalties stand imposed upon him. We have heard Shri S.N. Kantawala, learned Advocate appearing for the appellant and Shri Samir Chitkara, learned SDR appearing for the revenue. 2. As per the facts on records, the appellant herein is engaged in the activities of Customs House Agent services and holds a valid licence from the Customs under the provisions of Customs House Agent Licensing Regulations, 1984. The said services were made liable to Service tax with effect from 1997. The appellant accordingly got itself registered with the Service tax Department and started paying tax under the cover of Customs House Agent services. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 65(82) of the Act, port services are required to be rendered by Port or any other person 'authorized' (emphasis provided) by such port in relation to vessel or goods. As such, it has been contended before us that the services required to be provided by the Port are port services, for which any other person may be authorized to step into shoes of the Port. Inasmuch as the services being rendered by the appellant are not required to be rendered by the port, there is no authorization by the Port to the present appellant to render the said services. It cannot be concluded that the appellant is providing any port services. Further, licenses issued by the Port authorities to the appellant cannot be considered as authorization inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the port service was examined at length by the Tribunal in the case of Homa Engineering Works referred supra. In para 8 of the said judgment, it has been observed that taxable services under the net of Port Service means any service rendered by a port or any person authorized by such port. The services being provided by the appellant are handling, stevedoring, loading, unloading, tug hire and labour arrangement. Admittedly, such services are not required to be provided by the Port under The Major Port Trusts Act, 1963. A perusal of the Section 35 of the said Act, as reproduced in the case of Homa Engineering Works, clearly shows that power of the Board to execute the works and provide appliances do not include the above activities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the person so authorized cannot charge any excess payments than the amount specified in the tariff authority for Major Ports, by Notification in the Official Gazette. The licenses issued to the appellant are not governed by the statutory requirement of Section 42 inasmuch as the appellant is free to charge any amount from its customers for the services being provided by it and such collections are not regulated by the Port. In this view of the matter, the licence given to the appellant cannot be held to an authorization. 8. Licence means a permission given for specific purpose; the licence holder cannot be interpreted as having the powers or authority of the person issuing the licence, unless the licence specifically mentions ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under Sec. 42 of MPTA). The Stevedores and other port service providers, issued with licences by Ports, have not conferred with functional authority as seen in the case of private agencies maintaining container terminal or berths. This difference in functional freedom will bring out clearly the difference between an authorization given under Sec. 42 of MPTA and a licence given under regulations under Sec. 123 of MPTA. 9. In the light of the foregoing discussions and applying the ratio of law declared by the Tribunal in the case of Homa Engineering Works, we are of firm view that activities undertaken by the appellant does not fall under the category of Port Services. 10. As regards the limitation, we find that the services bei ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
