2008 (5) TMI 160 - AT - Service Tax

Whether loading and unloading services provided within the port area are taxable under the category of Port Services - appellant is already covered under the category of Cargo handling and Storage Services and Customs House Agent in view of Tribunal s decision in identical matter, where issue is decided in favour of assessee, stay is granted

Summary

Issues:
1. Waiver of pre-deposit of service tax amount and penalty.
2. Classification of activities under 'Port Services'.
3. Applicability of judgments in similar cases.
4. Time-bar issue.

Analysis:

Issue 1: Waiver of pre-deposit
The appellant sought waiver of pre-deposit of service tax amount and penalty totaling Rs. 3,51,11,680. The Revenue categorized the activities under 'Port Services' taxable under Section 65 of the Finance Act, 1994. The appellant argued that they provided loading and unloading services within the port area, making them exempt from service tax. Citing previous judgments, the appellant contended that their services did not fall under 'Port Services'.

Issue 2: Classification of activities
The Revenue relied on a Chennai Bench's stay order, stating that stevedoring activities, being ancillary to the main activity of the Port Trust, should be considered as 'Port Services'. However, the appellant contested this classification, emphasizing that the services they provided, such as hiring barges and cranes, were not mandated by the Port and thus should not be deemed as 'Port Services'. The Tribunal noted the conflicting interpretations in various judgments.

Issue 3: Applicability of judgments
The Tribunal considered the judgments cited by both parties. It observed that the Final Orders from different Benches post-dated the Chennai Bench's stay order, making them binding in this case. The Tribunal found that the citations relied upon by the appellant were relevant to the facts of the case, leading to the decision to grant waiver of pre-deposit and stay the recovery until the appeal's disposal. The Tribunal scheduled the appeal for an expedited hearing due to the substantial amount involved.

Issue 4: Time-bar issue
The learned Counsel contested the time-bar issue, but the Tribunal did not delve into this aspect in the judgment. Instead, the focus was on the classification of services under 'Port Services' and the applicability of relevant judgments in determining the waiver of pre-deposit.

In conclusion, the Tribunal granted the appellant's request for waiver of pre-deposit and stayed the recovery of the amount until the appeal's final disposal. The case was scheduled for an expedited hearing, considering the significant sum involved.