TMI Blog2019 (5) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... egal entities. In view of clear supply of manpower by appellant they are liable to tax. Moreover, it is seen that there is no ambiguity in law and in these circumstances failure to pay can be clearly attributed to intention to evade. Extended period has been rightly invoked - demand upheld. Appeal allowed in part. - Service Tax Appeal No. 387 of 2009-DB - A/10752/2019 - Dated:- 30-4-2019 - MR. RAMESH NAIR, MEMBER (JUDICIAL) And MR. RAJU, MEMBER (TECHNICAL) Shri S.S. Gupta (Advocate) for Appellant Shri L. Patra (A.R.) for Respondent ORDER Per: RAJU The appellant are engaged in providing various services primarily catering to needs of clients in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uitment Supply Agency and service tax is payable on the same under this category. 2.1 Freight on Barges: Ld. Counsel argued that the amounts received as freight on barges is not taxable. He pointed out that Magdalla Port, where there services was provided, is a shallow port and therefore, the mother vessel has to anchor at a point away from the jetty. Consequently, the goods are to be unloaded from the mother ship at the point of mooring and transported on barges to the jetty and then unloaded in the port. Ld. Counsel argued that Tribunal in the case of United Shippers Ltd. 2015 (37) STR 1043 has held that the cost of such transportation of materials form mother vessels to jetty is part of the value of the goods importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 546 (T) 2.2 Salary of floating crane operator: The next issue relates to the service relating to supply of crane operator for the floating cranes. The said bills have been raised by M/s Essar Shipping Ltd. at Hazira Port. [The Hazira Port is a minor port operated by M/s Essar Shipping Ltd.] 2.3 Ld. Counsel argued that the appellants were not authorized specifically by the port and therefore, no demand under port service can be made against appellant under this head. It has been argued that they have not received any authorization from Gujarat Maritime Board for provision of these services. Ld. Counsel further relied on the agreement between the appellant and M/s Essar Shipping Ltd. which reads as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (35) STR 496 (Guj.). 2.6 Ld. Counsel further argued that the entire demand has been raised invoking extended period of limitation. He argued that the issues involved as discussed above were all contentious issues and various interpretations of the same have been made by Tribunal and other Courts. He argued that in these circumstances, it cannot be said that there was any intention to evade the tax and thus extended period of limitation has wrongly being invoked. He pointed out that if relief on this count is granted, the entire demand would be barred by limitation. 3. Ld. AR relies on the impugned order. He pointed out that the unloading of material from mother ships, loading into barges, transporting the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Ltd. The services are alleged to be taxable under the category of port services. c) Management and allied services: The appellants provided the services of terminal maintenance, jetty cleaning, house-keeping, moving/unmoving of barges/ vessels at berth, cleaning of barges, cleaning of vessel deck, closing/ unclosing of hatches of the mini bulk carrier, technical services for the cranes of barges, loading of coils/ sheet packs in barges etc. The services are alleged to be taxable under the category of port services. d) Salary paid to Foreman/ Khalasi: The appellants raised bills for reimbursement of salary paid to Foreman/ Khalasi and collected the gross amount from recipient of service. It is alleged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r goods. Other Port has the meaning assigned to port in clause (4) of section 3 of the Indian Ports Act, 1908 (15 of 1908), but does not include the port defined in clause 80. Thus only the services authorized by the port, or other ports, were chargeable to service tax in terms of the aforesaid definition of Port Service . This expression was examined by the Tribunal in the case of Velji P Sons (Agencies) P. Ltd. (supra) wherein the following has been observed. The aforesaid decision of the Tribunal was upheld by Hon ble Apex Court on the ground that the decision of Tribunal in case of Homa Engineering Works 2007 (7) STR 546 (Tri-Mum) was not challenged by Revenue. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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