TMI Blog2007 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... s provided Cargo Handling Services to various exporters in relation to export of iron ore fine from New Mangalore Port. They paid Service Tax of Rs. 4,79,397/- even though the export cargo is excluded from the levy of Service Tax under the Cargo Handling Service. Therefore, they filed a refund claim on the ground that they paid the tax erroneously and Service Tax is not leviable on export cargo. But, the Assistant Commissioner passed an order dated 02-5-2005 holding that the said services would be classifiable under Port Service and, therefore, Service Tax has been correctly paid. The appellants approached the Commissioner (Appeals) who passed an order dated 28-10-2005 holding that the Port Service is one which is rendered by a Port a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable under the Port Service and, therefore, the appellant would not be entitled for the refund. He ordered that the said amount should be re-credited to the Revenue Account of the Service Tax. The appellants strongly challenge the impugned order. 3. Shri M.S. Nagaraja, the learned advocate, appeared for the appellants and Shri Anil Kumar, the learned JDR, for the Revenue. 4. The learned Advocate submitted that the appellants are holding Stevedoring Licence issued by the Mangalore Port Trust. Stevedoring is actually for loading and unloading of cargo. In the present case, the appellants are loading the export cargo. Moreover, Shri Nagaraja referred to Section 42 of the Major Port Trust Act, 1963. This Section provides that the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered by a Port or any person authorized by such Port. As such, the services which can be taxed under the said category have to be either services rendered by the Port itself or any person authorized by such Port. In that case, the Revenue tried to tax the repair services rendered by a ship repairing company as Port Service . The Tribunal did not accept Revenue's contention and in fact held that the Board's Circular issued on this behalf is not in accordance with law. The learned advocate questioned the jurisdiction of the Commissioner to review the order passed by the Assistant Collector de novo. According to the learned Advocate, the Commissioner (Appeals) already decided the issue substantially and the right course for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, the appellants strongly contend that the services rendered by them are not on behalf of the ports but on their own behalf. In other words, the appellants render directly the services and the licence is only a permission to undertake such services within the port premises. Therefore, it cannot be interpreted that the appellants are rendering any service on behalf of the port. We also find that the issue has been gone in depth in the I cited decision of the Mumbai Tribunal wherein the Tribunal held that the port is supposed to give only facility for ship repairing and it is not expected of a port to directly render the services of ship repairing. Interpreting Section 42 and the provisions of the Service Tax in the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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