2004 (12) TMI 2 - AT - Service Tax

Service Tax Service of storage of imported cargo Stay/Dispensation of pre-deposit of service tax

Summary

Issues:
1. Whether storage services provided by the applicant are taxable under service tax.
2. Whether the services provided by the applicant can be considered as part of port services.
3. Whether the applicant is liable to pay service tax for the storage facility created by them.
4. Whether the applicants are required to make a pre-deposit of tax and penalty demanded by the department.

Analysis:

1. The applicants argued that the storage services provided were part of services by a Minor Port, which were not taxable until 1-7-2003. The Department contended that the storage services were taxable. The tribunal noted that the applicants charged separately for services like bringing vessels into the harbor, discharging cargo, and storage until delivery. The tribunal found that the storage services provided by the applicants were taxable under service tax as they included storage and warehousing services for goods, as per the Finance Act, 2002.

2. The tribunal considered whether the services provided by the applicants could be considered part of port services. The applicants claimed that as operators of a Minor Port, their services were not taxable until 1-7-2003. However, the tribunal found that the tank farm, where storage took place, was not within the port premises. Only activities inside the port premises were covered under port services. The tribunal did not find merit in the argument that the storage services were part of port services provided by the applicants.

3. The tribunal addressed the issue of whether the applicants were liable to pay service tax for the storage facility created by them. The tribunal found the applicants' argument that they were not engaged in storage and warehousing but collected charges as a matter of convenience unconvincing. The tribunal directed the applicants to deposit Rs. 1.75 crores towards service tax within 12 weeks, waiving further deposit of tax and penalty imposed by the Commissioner upon such deposit.

4. Regarding the requirement for a pre-deposit of tax and penalty demanded by the department, the tribunal found that the applicants had not made a strong prima facie case for a total waiver of pre-deposit under Section 35F of the Act. The tribunal considered the agreements with users and the legal aspects of the demand. The tribunal directed the applicants to make the specified deposit within the given timeline, warning that failure to comply could result in the dismissal of the appeal.

In conclusion, the tribunal ruled that the storage services provided by the applicants were taxable under service tax, not considered part of port services, and directed the applicants to make a specified deposit towards service tax within a given timeline to avoid further penalties or dismissal of the appeal.