TMI Blog2018 (12) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... wed - decided in favor of appellant. - S.T. Appeal No.182/09 - FO/A/76924/2018 - Dated:- 15-11-2018 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) Shri K. K. Achariya, Advocate for the Appellants(s) Shri S. S. Chattopadhyay, Supdt. (AR) for the Revenue ORDER Per Bench : The present appeal challenges the Order-in-Appeal No.37/ST/BI/ 2009 dated 17.04.2009. 2. The appellant is a manufacturer of Rare Earths. The dispute is regarding the consignment of Ilmenite (one of the rare earth minerals manufactured by the appellant), which was exported by them through Gopalpur Port. The appellant entered into a contract with Gopalpur Port for loading of the goods at the stockyard of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld.Advocate for the appellant as well as Shri S.S. Chattopadhyay, ld.D.R. for the Revenue. 4. The ld.Advocate for the appellant submitted that the activity in the contract with Gopalpur Port was in the nature of Cargo Handling Service , but the definition of such service does not include export cargo. In the present case, the contract was for export of Ilmenite and hence Gopalpur Port should not have charged the service tax. The service tax so charged by Gopalpur Port, has been claimed by them as refund and hence, the appellant will be eligible for the same. He emphasized that the claim for refund has been made in terms of Section 11B, within applicable time limit specified therein. He also submitted that the appellants have not availed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gopalpur Port was contracted to load the goods at the stockyard of the appellant, transport the same to the Gopalpur Port and ultimately load to the vessel through barges. It has been argued by the appellant that these activities are in the nature of Cargo Handling Service , but in terms of the definition of Cargo Handling Service , no service tax could be levied for export cargo and hence, the service tax has been wrongly recovered by Gopalpur Port. The service tax paid by the appellant to Gopalpur Port has been claimed as refund in the present proceedings. 8. The Revenue s view is that the activity has predominantly been carried out within the port area. Transport and loading of goods on the vessel is in the nature of stevedoring an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the port area. The Tribunal, by following the decision of the Hon ble Karnataka High Court in the case of Commissioner Vs. Konkan Marine Agencies : 2009 (13) STR 7 (Kar.), took the view as follows : 6.1 The Cargo Handling Service definition under Section 65(23) excludes from its scope, handling of export cargo. What is covered under the Port Services under Section 65(82) is a taxable service rendered in a Port area. If the handling of cargo is excluded from the scope of a taxable service, it cannot come within the purview of Port Service as defined. This is the view taken by the Hon ble High Court of Karnataka in the case of Konkan Marine Agencies (supra). Therefore, there is merit in the claim of the appellant that the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X
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