2012 (9) TMI 850 - HC - Service Tax

Levying and demanding service tax in respect of activities undertaken by the members of Association at port - Held that - With respect to the members of the petitioner-Association who are engaged in repair of work of vessels, in our opinion, the authorities are justified in insisting that they must register themselves and also pay service tax as may be payable. With respect to those members who do not provide any such repair work, but provide exclusively the provisions to crew and for the utility of the vessel, we are of the opinion that material is scanty for us to express any opinion thereon. Any service rendered by a port or other port or any person authorized by such port or other port. The section does not provide that the authorization that may be granted by the port must be of such service which the port as exclusively obliged to undertake, under the statute. Association only wrote a small letter in the nature of representation requesting to drop the demand for registration. Before HC, except singular document showing the trade license issued by the port authorities in favour of one of the ship chandlers, no further evidence or material is produced to demonstrate the nature of activities carried on by such members. It would, therefore, be hazardous to express any legal opinion on the basis of such scanty material. Therefore Petition stands dismissed.

Issues Involved:
1. Whether the activities undertaken by ship chandlers fall within the definition of "port service" under section 65(82) of the Finance Act, 1994.
2. Whether ship chandlers are liable to register and pay service tax under the Finance Act, 1994.

Issue-wise Detailed Analysis:

1. Definition of "Port Service":
The primary issue is whether the services provided by ship chandlers fall under the definition of "port service" as defined in section 65(82) of the Finance Act, 1994. The petitioners, an association of ship chandlers, argued that their services, which include supplying provisions to the crew and minor repairs, do not constitute "port service" and thus are not subject to service tax. The respondents contended that these services are indeed "port services" as they are rendered in relation to a vessel or goods.

The court examined the statutory provisions, noting that section 65(105)(zn) makes taxable any service provided by a port or any person authorized by the port, in relation to port services. The term "port service" is expansively defined to include any service rendered by a port or any person authorized by such port, in any manner, in relation to a vessel or goods. The court emphasized that the expressions "in any manner" and "in relation to" expand the scope of the definition.

2. Authorization and Scope of Services:
The court found that the members of the petitioner-association are authorized by port authorities under the Major Port Trusts Act, 1963, to provide such services. The court rejected the petitioners' argument that authorization should be limited to services exclusively performed by port authorities under the statute. The court clarified that the statutory language does not support such a restrictive interpretation and that authorization can extend to a range of services provided in relation to a vessel.

3. Repair Services and Service Tax Liability:
The court distinguished between members who provide repair services and those who do not. It concluded that members who undertake repair work, even if minor, are providing services in relation to a vessel and thus fall within the definition of "port service." Consequently, these members are liable to register and pay service tax.

The court referred to the Central Board of Excise and Customs (CBEC) circulars which clarified that services rendered during dry docking and repairs to the ship are taxable. The court also noted a previous Tribunal decision (Homa Engineering Works v. Commissioner of Central Excise) but did not agree with its restrictive interpretation of "port service."

4. Supply of Provisions:
For members who only supply provisions and do not engage in repair work, the court found the evidence insufficient to make a definitive ruling. The petitioners had not provided adequate material to demonstrate the exact nature of their activities. Therefore, the court left the question of service tax liability for these members open, allowing them to raise objections before appropriate authorities at a later stage.

Conclusion:
The petition was dismissed with the court affirming that members involved in repair work must register and pay service tax. The issue of service tax liability for members solely supplying provisions remains open for further determination based on more detailed evidence.

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