TMI Blog2024 (3) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... this Tribunal vide Final Order No. 56944/2013 dated 04.07.2013 had remanded back the matter. It is observed that subsequent to remand, the benefit of cum tax has been given to the appellant, accordingly, the entire demand on the aforementioned first issue was absolutely dropped. However, the demand on second count is confirmed holding the activity done by the appellant to be called as storage and warehousing services. It is observed that there is no denial about discharge of service tax by the appellant with respect to handling of empty containers which were stored in the appellant s area or were warehouse. The demand is with respect to such empty containers which were handled prior reaching the appellant s storage area/warehouse. The issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenge is held not sustainable. Same is accordingly therefore set aside - Appeal allowed. - DR. RACHNA GUPTA, MEMBER (JUDICIAL) AND MRS. HEMAMBIKA R. PRIYA, MEMBER (TECHNICAL) Shri R.P. Jindal, Advocate for the Appellant Shri S.K. Meena, Authorized Representative for the Respondent ORDER The appellant in the present case is registered with the service tax department for rendering taxable services of Customs House Agent and Storage and Warehousing Services. During the audit of appellant s record department observed following shortcomings: (i) During the period 01.05.2003 to 16.07.2003, the appellant has not paid service tax on the value of services rendered on account of ground rent of empty containers, resulting into the non-payment of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... storage and warehousing services, this Tribunal found that authorities below have not discussed about the activity undertaken by the appellants and how this activity fulfills the conditions of storage and warehousing services. Under these circumstances, the matter was remanded back pursuant to the direction of remand that the Order-in-Original No. 90/2016 dated 13.12.2016 was passed vide which the cum tax benefit was given to the appellant. Accordingly, the amount already paid by the appellant (Rs.95,079/-) as service tax in respect of handling of empty containers during the impugned period was held correct and the demand of balance service tax was set aside. However, with respect to the second issue of demand rejecting the activity of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately after de-stuffing is moved to the outbound vehicle to the customer place and charges for handling of empty container from the CONCOR yard to the outbound vehicle are collected from the shipping line and no service tax has been paid on the activity considering the same to be handling charges for movement of the empty container. (iii) Empty containers are moved from the warehouse to the outbound vehicle for movement to the customers' (of shipping lines) place and charges for handling of empty container from the CONCOR warehouse to the outbound vehicle are collected from the shipping line and no service tax has been paid on the activity considering the same to be movement of the empty container. 3.1 It is submitted that the depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02,416/- for the period 01.05.2003 to 16.07.2003 on the value of services rendered on account of ground rent of empty containers. (ii) The service tax for the said period on handling of empty container charges under the category of Storage and Warehousing Services. 7. The proposal was confirmed on both these issues. However due to the plea of the appellant being eligible of cum tax benefit that this Tribunal vide Final Order No. 56944/2013 dated 04.07.2013 had remanded back the matter. We observe that subsequent to remand, the benefit of cum tax has been given to the appellant, accordingly, the entire demand on the aforementioned first issue was absolutely dropped. However, the demand on second count is confirmed holding the activity done b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble activity of storage and warehousing, we hold that the service tax on the amount received for handling of nonstored/ non-warehoused empty containers is wrongly demanded and thus is held to have wrongly been confirmed. 9. The activity of handling of container cannot to be covered under the taxable activity of cargo handling as cargo handling service also. This activity is essentially a service in relation to merchandise. As per the dictionary also cargo means goods carried on a ship, aircraft or motor vehicle. The empty containers are not the merchandise. The Circular No. B11/1/2002-TRU has explained that empty containers cannot be treated as cargo. In light of these observations, the activity in question cannot even be called as the taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
