2013 (12) TMI 1331 - AT - Service Tax

Stay application - Service tax payable on the service of unloading of coal from the ship to the hoppers kept on the port-docks - Held that - Since at some stage the applicant was taking Cenvat credit on the input services it would prima facie appear that the impugned services availed by them is input service for applicant rather than a reimbursable expense. A final view in the matter can be taken during final hearing of the matter. What we find is that the service tax demand confirmed is Rs.5,78,92,139/- against the applicant. According to the applicant, they are eligible for credit of about Rs.5,74,12,309/- not yet utilized. So, we direct the applicant to deposit the entire amount of service tax demanded which can be very easily complied with because according to her own submission they have credit of Rs.5,74,12,309/- as input service credit. The principle is accepted by the impugned order though quantum is not verified. If there is any dispute in the figure, this can be reviewed at the time of reporting compliance - Prima facie case not in favour of assessee - Stay granted partly.

Summary

Issues:
Service tax liability on unloading of coal from ship to port-docks, interpretation of "Port Services" definition, invocation of Rule 5 of Service Tax (Determination of Value) Rules, 2006, applicability of extended time period for issuing notice, eligibility for CENVAT credit on service tax paid on unloading charges.

Analysis:
The case involved a dispute regarding the service tax liability on the unloading of coal from a ship to the port-docks by M/s. Poompuhar Shipping Corporation Ltd. (PSCL), a government-owned entity. The Revenue contended that this activity falls under the definition of "Port Services" and should attract service tax. Additionally, the Revenue highlighted that PSCL had taken CENVAT credit on services rendered by Tuticorin Port but had not included the value of these input services in their output service bills, treating them as reimbursable expenses.

The applicant argued that the unloading of cargo was incidental to their transportation activity and did not fall under "Port Services" until relevant entries were amended in July 2010. They also challenged the invocation of Rule 5 of Service Tax (Determination of Value) Rules, 2006, citing a Delhi High Court judgment. Furthermore, they questioned the justification for invoking an extended time period for issuing the notice.

A crucial point raised was the eligibility for CENVAT credit on service tax paid on unloading charges, with the applicant asserting that utilizing this credit would cover the outstanding demand. The Revenue countered by emphasizing that the applicant had not included the value of input services in their output service bills, leading to the current demand based on correct reasoning.

After considering both arguments, the Tribunal directed the applicant to deposit the entire demanded service tax amount, acknowledging the available input service credit. The Tribunal noted the discrepancy in figures but allowed for a review during compliance reporting. The applicant was given six weeks to make the deposit for admission of the appeal, with the balance dues stayed pending appeal disposal.

In conclusion, the judgment addressed the service tax liability issue, interpretation of "Port Services" definition, Rule 5 applicability, extended time period for notice issuance, and CENVAT credit eligibility. The Tribunal's decision balanced the parties' arguments, requiring the deposit of the demanded amount while allowing for a review of the figures during compliance reporting.