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2019 (9) TMI 580

..... the wharf - HELD THAT:- The services rendered by the appellant does not fall in the category of Cargo Handling Service prior to 1.7.2003. Further, during the impugned period, the services rendered by the appellant fall in the category of Port Service and not Cargo Handling Service as held by the apex court in the case of DCCE vs. Sushil & Co. [2016 (4) TMI 987 - SUPREME COURT] and also clarified by the Board Circular dated 1.8.2002 - demand of service tax on Cargo Handling Service for the period 16.8.2002 to 30.6.2003 is not sustainable in law. Time Limitation - HELD THAT:- The entire demand is also barred by limitation because the show-cause notice was issued on 18.7.2009 proposing to demand service tax for the period from 16.8.2002 to .....

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..... authority confirmed the demand along with interest and also imposed penalties under Section 76, 77 and 78. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) who rejected the appeal. Hence, the present appeal. 3. Heard both the parties and perused the records. 4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant has paid the service tax under the category of Cargo Handling Service from 1.7.2003 in respect of stevedoring service including discharging of materials from vessel at Karwar Port, a minor port. He further submitted that the activity of steve .....

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..... p or aircraft. Well known examples of cargo handling service are services provided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services. 4.1 Learned counsel also relied upon the decision of the Hon ble Apex Court in the case of DCCE vs. Sushil & Co.: 2016 (42) STR 625 (SC) which has held as under: 6. The High Court, on the interpretation of the aforesaid Entry, has observed that two conditions for considering any service to be Cargo Handling Service‟ need to be satisfied, namely; (1) there must be a cargo i.e. a p .....

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..... t or other port was not liable to service tax during the period and subsequently, the definition of port service which was earlier limited to major port was amended from 1.7.2003 to include all ports for the purpose of levy of service tax under Port Service through Finance Act, 2003. This inclusion of minor port or other ports within the scope of levy of service tax is cleared from CBEC No.59/08/2003-ST dated 20.6.2003. He further submitted that in the show-cause notice, there is no allegation of fraud, collusion, willful misstatement or suppression of facts or contravention of any Rules with intent to evade payment of service tax and in the absence of any allegation, larger period of limitation cannot invoked. For this, he relied upon the .....

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