2010 (10) TMI 321 - AT - Service Tax

Misdeclaration of value - Demand - Classification - The appellants herein are claiming the classification of their services under the category of Custom House Agents and other services while Revenue seeks to classify these services under Port services - the service provider has obtained a stevedore licence from the Port Trust, for rendering stevedore service - since the service provider are issued with stevedore licence by the NMPT to operate within the port area it cannot therefore be said that they are not authorized by the NMPT for rendering services in relation to vessels and goods within the port area - Thus, removing, shifting, transporting, storing or delivering goods brought within the port premises are either to be done by Port or by any person authorized by the port adjudicating authority has not given any reasoning for holding this view and the amount of CENVAT credit availed by him needs to be recovered from him - adjudicating authority has not given any reasoning for coming to such a conclusion that the appellant had not paid the service tax on these two services rendered by him - Matter remanded back.

Issues Involved:
1. Classification of services rendered by appellants.
2. Liability under 'Port services'.
3. Applicability of precedents and judgments.
4. Eligibility of CENVAT credit.
5. Demand of differential Service Tax under 'Steamer Agent services' and 'Clearing & Forwarding services'.
6. Penalties and interest.

Detailed Analysis:

1. Classification of Services Rendered by Appellants:
The primary issue revolves around whether the services rendered by the appellants should be classified under 'Port services' or other categories such as 'Custom House Agents' (CHA), 'Steamer Agent', or 'Clearing & Forwarding Agents'. The appellants argued that they were discharging Service Tax under the CHA category on 15% of the gross value billed, whereas the Revenue contended that the entire amount should be taxed under 'Port services'.

2. Liability Under 'Port Services':
The adjudicating authority held that services rendered within the port area by persons holding a Stevedoring Licence should be classified under 'Port services' as per section 65(105)(zn) of the Finance Act, 1994. The appellants contested this, citing the judgment in Konkan Marine Agencies v. CCE [2009] 18 STT 115 (Kar.), which held that services rendered directly by the licensee and not on behalf of the port do not fall under 'Port services'. The Tribunal upheld this view, stating that the services rendered by the appellants do not amount to 'Port services' and should be classified under 'Cargo Handling Services', which excludes export cargo from the purview of Service Tax.

3. Applicability of Precedents and Judgments:
The appellants cited several judgments including Homa Engg. Works v. CCE [2007] 9 STT 294 (Mum. - CESTAT), Velji P. & Sons (Agencies) (P.) Ltd. v. CCE [2008] 12 STT 148 (Ahd. - CESTAT), and Konkan Marine Agencies v. CCE [2008] 12 STT 82 (Bang. - CESTAT), arguing that these precedents support their case. The Tribunal agreed, noting that the facts in these cases were similar and that the judgments were applicable.

4. Eligibility of CENVAT Credit:
In the case of M/s. Hasan Haji & Co., the adjudicating authority ordered the recovery of CENVAT credit, but did not provide any reasoning. The Tribunal remitted this issue back to the adjudicating authority for a reasoned order, directing adherence to the principles of natural justice.

5. Demand of Differential Service Tax Under 'Steamer Agent Services' and 'Clearing & Forwarding Services':
For M/s. Sri Ganesh Shipping Agency, the adjudicating authority also confirmed demands under 'Steamer Agent services' and 'Clearing & Forwarding services' without providing adequate reasoning. The Tribunal remitted this issue back to the adjudicating authority for a detailed examination and a reasoned order.

6. Penalties and Interest:
As the Tribunal set aside the impugned orders on merits, it held that there could be no case for penalties or interest in respect of the main issue of classification under 'Port services'.

Conclusion:
The Tribunal allowed the appeals, setting aside the orders classifying the services under 'Port services'. It remitted specific issues regarding CENVAT credit and differential Service Tax demands back to the adjudicating authority for further examination and reasoned orders, ensuring adherence to the principles of natural justice. The Tribunal did not impose any penalties or interest, given the merits of the case.

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