2011 (5) TMI 711 - AT - Service Tax

Cargo Handling Service versus Airport Services - classification - Appellant is engaged in the business of storage and warehousing in relation to exports. In the case of export cargo the effort is to reduce the holding time in Airport to the extent possible. If there is holding of cargo for a few hours or a few days for proper handling of cargo and loading on to proper aircraft, the activity cannot be considered as storage and warehousing service notwithstanding the fact that they charge to the clients in the name of storage charges - But the position from 10-9-2004, when entry was notified for Airport Service the position is different. Under this entry service rendered to any person, by airports authority or by any other person, in any airport or a civil enclave became taxable - appellant shall make a deposit of Rs. 2.58 Crores, deposit of balance of duty demanded and interest and penalties waived

Summary

Issues:
Classification of services for taxation under the Finance Act, 1994; Applicability of amendments to legal provisions; Interpretation of legal provisions for tax liability; Invocation of extended period for issuing demand under Section 73 of Finance Act.

Analysis:

1. Classification of Services for Taxation:
The appellant, engaged in managing airports, provided services like handling export cargo, X-raying, unitization, and carting. The dispute centered on whether these services fell under "Cargo Handling Service" or "Storage and Warehousing Charges" as per the Finance Act, 1994. The appellant argued that handling export cargo was excluded from "Cargo Handling Service" and should not be classified as "Storage and Warehousing Charges."

2. Applicability of Legal Amendments:
Changes in the law introduced new entries affecting the classification of services. The revenue contended that the principles of an amendment made in 2010 were applicable even for the period before the amendment. The appellant argued against retrospective application, citing the Supreme Court's decision in UOI v. Martin Lottery Agencies Ltd.

3. Interpretation of Legal Provisions:
The appellant emphasized that their activities primarily constituted cargo handling and not storage and warehousing. They referred to a circular and a Tribunal decision supporting their position. The appellant also disputed the classification under "Airport Services," asserting that the amendment could not have retrospective effect.

4. Invocation of Extended Period for Demand:
The appellant contended that the extended period of 5 years for issuing demands under Section 73 of the Finance Act should not apply as there was no intent to evade duty, and actions were based on a bona fide belief. The revenue argued that if services were covered under any taxable category, the appellant was liable to pay tax.

In the judgment, the Tribunal held that while the appellant's activities did not amount to storage and warehousing pre-2004, post that date, services provided fell under "Airport Services." The Tribunal ordered the appellant to make a deposit for appeal admission, waiving the balance of duty, interest, and penalties. The decision highlighted the need for clarity in understanding legal provisions and upheld the tax liability under the applicable classification post-2004.