2020 (9) TMI 8 - AT - Service Tax

Classification of services - activity of granting licence to third party-crane operators for providing their crane (wheel mounted) in the Port area for providing services of loading and unloading etc. with the help of the crane - period is September, 2006 to September, 2008 - extended period of limitation - HELD THAT - The issue is no longer res integra and the same has been decided in favour of the assessee by Hon ble Kerala High Court in the case of THE COMMISSIONER OF CENTRAL EXCISE, ERNAKULAM VERSUS COCHIN PORT TRUST WILLINGDON ISLAND. 2019 (2) TMI 760 - KERALA HIGH COURT where it was held that Definitely the Revenue earned by IGTPL will be taxed under the Finance Act, 1994 specifically under sub-clause (lxxxii) of Section 65. It is a percentage of that, which the IGTPL pays to CPT, in lieu of surrendering their rights to carry out and provide port services in the subject terminals. There is no port service by the CPT to IGTPL. We hence find the order of the Tribunal to be perfectly in order. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the appellant, a Port Trust, is liable to pay Service Tax under the Head "Franchise Services" for granting a license to third-party crane operators for providing crane services in the Port area.

Analysis:
The appellant, a Port Trust, was involved in granting licenses to third-party crane operators for providing crane services in the Port area. The issue revolved around whether the license fee collected by the appellant from the crane operators was liable to Service Tax under the category of "Franchise Services." The appellant argued that the conditions for taxing a service as Franchise Service were not met in this case, as there was no grant of representational right to the franchisee, the goods or services were not identified with the franchisor, and the licensee/crane operators did not raise invoices in the name of the appellant Port Trust.

The appellant contended that the granting of licenses was a statutory activity under the Major Port Trust Act and, therefore, the license fee was not assessable to Service Tax. The appellant relied on previous tribunal rulings and a High Court decision to support their argument that license fees and royalties received by Port Trusts for licensing others to perform functions within the port area were not liable to Service Tax under the category of "Franchise Services."

The Revenue, represented by the Authorized Representative, relied on the impugned order that confirmed the demand for Service Tax along with penalties. However, the Tribunal, after considering the arguments from both sides and examining the impugned order, held that the issue had already been decided in favor of the assessee by the Hon'ble Kerala High Court in a similar case involving Cochin Port Trust. The Tribunal cited the High Court's decision to support its conclusion that the license fee received by the appellant was not taxable under the category of "Franchise Services."

Ultimately, the Tribunal allowed the appeal filed by the appellant, setting aside the impugned order and providing consequential benefits in accordance with the law. The judgment was pronounced in the open court on 31/08/2020, with the appellant succeeding in their appeal against the Service Tax liability under the Head "Franchise Services."