9911796707
TMI Blog2023 (4) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... ss) has been confirmed against the appellant under proviso to Section 73(1) of the Finance Act, 1994 (herein after referred to as the Act) besides demanding interest under Section 75, imposing equivalent penalty of Rs. 77,22,854/- under Section 78 and other penalties under Section 76 & 77 of the Act. 02. Briefly stated facts are that the appellant was engaged in providing the service under the category of "Port Service" classifiable under Section 65 (105) (zn) of the Act. The appellant obtained service tax registration with effect from 27.07.2007. The appellant had been providing port services since 2005. In the impugned order it has been held that the appellant had not discharged their tax liability amounting to Rs. 7,37,766/- during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over internal shifting of cargo within port, loading and unloading of cargo etc and reporting thereof. It is evident from the contract that the appellants are handling agriculture-based cargo as well as non-agriculture-based cargo. That, the appellants render Port Service as cargo handling agent in terms of the work orders which they procure or get from M/S Mundra Port and Special Economic Zone Ltd, Mundra, from time to time. These work orders are nothing but an authorization by the port to render Cargo Handling Services both for exports and imports for various goods mainly in break bulk cargo, within port area. He further pleaded that the above contention has been further supported and clarified by the Board vide Clarification No. B/11/1/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port premises then the service provided by the appellants would be classifiable under 'Cargo Handling Service' without any dispute. Hence, the appellants submit that their Service Tax registration under 'port Service' should not construed as incorrect and the issue on hand should be solely decided on the nature of taxable service which they are rendering. 3.2 Based on the above submission the appellant prayed that the appellant were only liable for a tax liability of Rs. Rs.39,88,858/- from 2006-07 and they had already paid a service tax of Rs. 81,09,567/-. Since the appellants has paid excess amount than demanded in the impugned order, the demand confirmed in the impugned order has become infructuous. 04. On the other ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods;] Section 65(105)(zr) to any person, by a cargo handling agency in relation to cargo handling services Notification No. 10 /2002-Service Tax dtd. 01.08.2002 In exercise of the powers conferred by section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service provided to any person by a cargo handling agency in relation to, agricultural produce or goods intended to be stored in a cold storage, from the whole of the service tax leviable thereon under section 66 of the said Act. 2. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct that the noticee has rendered services of supervision over internal shifting of cargo within port area, loading, unloading of cargo and reporting thereof. These services would have been covered under the category of "cargo handling service" if provided outside the port area and therefore it can be construed that the appellant are a cargo handling agency which provide "port services" to M/S Mundra Port and Special Economic Zone Ltd, Mundra. Thus, in the facts of the case it can be safely concluded that the appellant is a cargo handling agency providing cargo handling service within the port area with authorisation from M/S Mundra Port and Special Economic Zone Ltd, Mundra i.e. "a port" but by virtue of definition of port services under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of agriculture produce within or outside port. Thus, we find that the appellant were eligible for the benefit of the notification no. 10/2002-ST dated 01.08.2002.
06. In view of our above findings, we remand back the case to the original adjudicating authority to re-determine the demand and decide the case afresh after allowing the benefit of notification no. 10/2002-ST dated 01.08.2002 to the appellant. The appellant will be given an opportunity to produce all the necessary documents in support of their claim. The miscellaneous application filed by the appellant for adducing additional evidence is accordingly disposed of as the matter stand decided on merit.
( Pronounced in the open court on 11. 04. 2023 ) X X X X Extracts X X X X X X X X Extracts X X X X
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