2008 (1) TMI 351 - AT - Service Tax

Assessee was rendering Steamer Agent service and was paying Service tax on the said services. Subsequently, they filed the refund claim for the above amount on the ground that they are authorized Cargo Handling Agent at Cargo Port and Export Cargo is exempted from payment of Service tax - held that the activity of the assessee does not come within the ambit of Port Services refund admissible

Summary

Issues:
1. Eligibility of refund claim for service tax paid by the assessee.
2. Classification of the activity carried out by the assessee as Port Services or Cargo Handling Services.

Eligibility of Refund Claim:
The case involved a Revenue appeal arising from an Order-in-Appeal where the Commissioner set aside the Order-in-Original and allowed a refund claim of Rs. 6,76,300 to the assessee. The assessee, a "Steamer Agent" service provider, filed the refund claim stating that they are authorized Cargo Handling Agents at the Cargo Port, making export cargo exempt from service tax. The Revenue rejected the claim, considering the activity as part of Steamer Agent services. However, the Commissioner accepted the plea that the Cargo Handling Service carried out within the port area does not fall under Port Services. The Commissioner held that the assessee is entitled to the refund subject to Section 11B of the Central Excise Act. The Revenue contended that the activity falls under the category of Port Services as per the Finance Act, 1994.

Classification of Activity:
The Revenue argued that the original order rejecting the refund claim was correct and justified. The Counsel for the Respondent referred to previous judgments where similar issues were considered. In the case of Konkan Marine Agencies v. CCE, Mangalore, it was held that the appellants' services did not amount to Port Services but rather to Cargo Handling Services, making them exempt from service tax on export cargo. The Counsel also cited Homa Engineering Works v. CCE, Mumbai, where the activity of "Port Service" was examined in detail, supporting the contention that the assessee's activity did not fall under Port Services.

The Tribunal, after careful consideration, upheld the Commissioner's decision to allow the refund claim. The Tribunal had previously ruled on a similar issue and found that the activity of the assessee did not constitute Port Services but rather Cargo Handling Services. The Tribunal referred to previous judgments to support this finding. Therefore, the Revenue's appeal was rejected, confirming the eligibility of the assessee for the refund claim.

In conclusion, the judgment addressed the eligibility of the refund claim for service tax paid by the assessee and the classification of the activity as either Port Services or Cargo Handling Services. The Tribunal upheld the Commissioner's decision, ruling that the activity did not fall under Port Services, making the assessee eligible for the refund claim. The judgment relied on previous decisions to support this conclusion and rejected the Revenue's appeal.