2011 (3) TMI 664 - AT - Service Tax

Demand - Classification - Port Services or Maintenance or Repair Service - It is argued that, for any period prior to 1-7-2003, it was not taxable under any pre-existing entry under Section 65 of the Finance Act, 94 - assessee merely on the strength of a Circular of the Board viz. Circular No. 67/16/2003-S.T., dated 10-11-2003 without considering the judicial authorities on the point cited by the party - Appeal is allowed by way of remand

Summary

Issues:
Demand of service tax for port services, classification of activities, interpretation of 'Port Services' under the Finance Act, 1994, comparison with Maintenance or Repair Service, impact of subsequent amendments on service classification, relevance of judicial precedents.

Analysis:
The appeal addressed a demand for service tax exceeding Rs. 2 crores for the period from 16-7-01 to 30-6-02 under 'Port Services,' including interest and a penalty. The charges collected by the appellant for activities like chipping, cleaning, and painting on marine vessels within port premises were classified as 'Port Services' by the adjudicating authority under Section 65(105)(zn) read with Section 65(67) of the Finance Act, 1994.

The appellant argued that for activities post-1-7-2003, service tax was paid under 'Maintenance or Repair Service' without objection from the Revenue. Various decisions were cited to support this claim, including the Homa Engineering Works case which held that repairing marine vessels within port premises did not fall under 'Port Services.' The subsequent amendment under the Finance Act, 2010 redefined 'Port Service' to include any service within a port, altering the taxable service definition effective 1-7-2010.

The learned counsel highlighted that from 1-7-2003 to 30-6-2010, the service should be considered 'repair or maintenance,' and before 1-7-2003, it was not taxable under any existing entry. Precedents like Indian National Shipowners Association v. UOI and Tribunal decisions supporting the High Court's view were referenced to strengthen the argument.

The SDR suggested awaiting the outcome of Central Excise Appeal No. 67/2009 before the High Court, which raised a similar legal question. The Tribunal decided to remit the case to the Commissioner for a fresh decision post the High Court's ruling in the Homa Engineering Works case. The impugned order was set aside, and the appeal was allowed for remand, emphasizing the need for the assessee to have a fair hearing in the process.