TMI Blog2020 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner did not take the stand that they were not authorised by the port to render the stevedoring service. Penalty - HELD THAT:- Since a question of law has been raised and the same is still pending consideration before the Principal Seat, it may not be fair to impose penalty on the petitioner - Penalty imposed on the petitioner is set aside. In all other respects, the order impugned is sustained. Petition allowed in part. - W.P.(MD)No.3023 of 2009 - - - Dated:- 11-9-2020 - HONOURABLE MR. JUSTICE G.R. SWAMINATHAN For Petitioner: Mr. N. Sabarimuthu, for Mr. S. Karunakar. For Respondents: Mr. S. Gurumoorthy, Standing Counsel for Central Excise. O R D E R Heard the learned counsel appearing for the writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers were transmitted, the Hon'ble Chief Justice passed an order that this writ petition can be decided in the Madurai Bench itself. That is how, this matter was listed before me. 5. The learned counsel appearing for the writ petitioner submitted that the petitioner would be liable to pay service tax only if the stevedoring services rendered by them can be said to fall within the purview of Section 65(67) of the Finance Act, 1994. During the relevant time, the said provision read that Port Services means any service rendered by a port or any person authorised by such port, in any manner, in relation to a vessel or goods. 6. The contention of the petitioner's counsel is that they had not been authorised by the port. On the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of the Larger Bench of CESTAT reported in 2011 (22) S.T.R.305 (Western Agencies V. Commissioner of C.Ex., Chennai). Before the Larger Bench, the following questions were raised: 15. ... (a) Whether any provisions other than clause(q) of Section (2) of the Major Port Trusts Act, 1963 or any provisions other than clause (4) of Section (3) of the Indian Ports Act, 1908 are applicable to interpretation of port service defined under Section 65(82) of the Finance Act, 1994; (b) Whether stevedoring in a major or minor port is a port service within the meaning of this expression defined under Section 65(82) of the Finance Act, 1994; (c) (If the answer to (b) is in the affirmative) Whether activities/operations lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other kinds of cargo handling in the port area(other than export of cargo) can be held to be services ancillary to stevedoring and classifiable as 'port services' under Section 65(82). 11. It is submitted by the learned counsel on either side that M/s.Western Agencies Pvt. Ltd., had filed C.M.A. questioning the same and that the said appeal is still pending before the Principal Seat. But till date it has not been stayed or set aside. 12. Therefore, for these two reasons, namely, (a) failure on the part of the petitioner to contest the points raised in the show cause notice (b) decision of the Larger Bench in 2011 (22) S.T.R.305 (Western Agencies V. Commissioner of C.Ex., Chennai), I have to necessarily sustain th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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