2008 (3) TMI 285 - HC - Service Tax

Assessee s claim for refund of service tax and interest on ground that handling of export cargo has been exempted from payment of service tax under the category of cargo handling service and that they had erroneously paid service tax on such export cargo handled by it in view of definition of Cargo Handling Service, service tax is not imposable on handling of export cargo - assessee s claim is acceptable refund was rightly sanctioned by tribunal

Summary

Issues:
1. Classification of service as "port service" or "cargo handling service" for taxation purposes.
2. Interpretation of relevant legal provisions and circulars related to service tax on export cargo handling.

Issue 1: Classification of service for taxation purposes

The appeal was filed by the Revenue under Section 35-G(2) of the Central Excise Act against the order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) relating to a refund claim for service tax and interest paid by the assessee for handling export cargo. The initial rejection of the refund claim by the Assistant Commissioner was based on the classification of the service as "port service," making it taxable. However, the Commissioner (Appeals) later classified the service as "cargo handling service," exempting it from service tax. The Commissioner, in a revisional jurisdiction, reversed this decision, categorizing the service as "port service" and rejecting the refund claim. The CESTAT, after hearing both parties, concluded that the service provided by the assessee was "cargo handling service," exempt from taxation, specifically for cargo meant for export. The High Court upheld the CESTAT's decision, emphasizing that the handling of export cargo falls outside the scope of service tax, as per the definition of "cargo handling service" in the Finance Act, 1994.

Issue 2: Interpretation of relevant legal provisions and circulars

The High Court analyzed Section 42 of the Major Port Trust Act, 1963, which empowers a port to undertake various services, including the authorization to delegate services to other entities with government approval. The court highlighted that the service provided by the assessee was not on behalf of the port but directly to customers, as evidenced by the Stevedoring License issued to the assessee by the port. The court also referenced a Circular issued by the Central Government, which clarified that all goods meant for export are excluded from the scope of service tax. By referring to the definitions of "cargo handling service" and "port service" in the Finance Act, the court reaffirmed that the handling of export cargo is not subject to service tax. The court dismissed the appeal, confirming the CESTAT's decision and emphasizing that the imposition of tax on export cargo handling was not applicable based on the legal provisions and circular interpretations provided.

This detailed analysis of the judgment addresses the issues of classification of services for taxation and the interpretation of relevant legal provisions and circulars, providing a comprehensive overview of the case.