9911796707
TMI Blog2007 (8) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authority or any authorized agent of the Port and in the present case, there is no evidence that the appellants are a Port Authority or authorised by the Port Authority for rendering services on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants 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 Board, (meaning Port Trust) is required to render a large number of services in the Port in relation to vessel as well as goods and the Board may render the services on its own or with the previous sanction of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt. 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 Commissioner would have been to file an appeal against the order of the Commissioner(Appeals) when he has already decided that the services rendered by the appellant would not come within the purview of "Port Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Finance Act, the Mumbai Tribunal even held that the Board's circular issued on this behalf is not in accordance with law. Moreover, the appellants have produced a letter from the Mangalore Port Trust which clearly say that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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