9911796707
TMI Blog2008 (10) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... tax by various means, investigation against them was taken up. The appellant did not obtain registration under Section 69 of Chapter V of the Finance Act, 1994 (hereinafter referred to as "the Act") under the category of Port Service and did not pay service tax leviable thereon and also did not comply with the provisions of the Service Tax Rules, 1994 (hereinafter referred as to "the Rules") Shri Ashit Parikh, Director of the appellant in his statement dt. 25-1-2005 stated that they provide Cargo Handling Service in the Port Area only and they do not pay service tax under the category of Port Service, but obtained registration under the category of "Cargo Handling Service" and paid service tax accordingly. The appellant vide his letter dated 30-3-2005 had submitted details of various services provided by them in ports along with the copies of invoices/bills raised by them to the recipient of the services. On scrutiny of the said document and statement of the authorized person of the appellant revealed that (a) The appellant were authorized by various ports to carry out cargo handling and other service in the port area, which is covered under the category of Port Service as defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal disposal of the appeals with a direction to appear with proof of pre-deposit but the appellant did not attend the personal hearing. However, Shri Sujay N. Kantawala, advocate of the appellant-company vide his letter dtd. 16-8-2007 requested that the Modification Application may be listed for hearing. 6. The Commissioner (Appeals) had also not considered the letter dated 16-8-2007 of the advocate of the appellant and rejected the appeals under Section 35F of Central Excise Act, 1944 without going into the merits of the case vide his OIA No. 80 to 81/2007 (BVR) Raju/Commr. (A-IV)/Ahd dated 20-9-2007. 7. Being aggrieved by the said OIA the appellants filed appeal before CESTAT, WZB, Ahmedabad. The CESTAT, Ahmedabad decided the case vide his order No. A-208-209/WZB/AHD/08 dated 5-2-08 wherein held that - "4. We find that the said conduct of the appellate authority is not in accordance with the judicial precedent. The disposal of the modification application as also the dismissal of the appeals on that ground vide a common order is not justified. The proper course would have been to hear the appellants on the modification, pass appropriate order on the same and in case of re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Sujay N. Kantawala, Advocate, on behalf of the appellant, vide his letter No. SK/158/2007/232/08/dated 9-6-2008. 9. In the appeal memorandum, the appellant has contented that the basically SCNs issued to them under the category of Port Service is not within the ambit of Service Tax law. They are holding the Registrations under the category of Cargo Handling Services and Steamer Agents, which squarely covers the services being rendered by them. They have also discussed the detailed position of each services in their appeal memorandum. Further they contented that they are service provider as a pure Agent of the recipient of service only, it cannot be considered that the entire port is handled by them. The services provided by the appellants fall under the category of Cargo Handling Service and Steamer Agent only and the value of taxable services are referred under the Port Services, which clearly indicates the inclusions of services as "Charge in relation to : port and dock charges, cargo handling and storage consisting of wharfage for general cargo, warehousing, ore handling, carnage, Railway haulage, container handling, weighment charges for goods, labour charges recovered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case, appeal memorandum submitted by the appellant. 11.1 I find that the appellant are provider of taxable services in the port areas to various parties, they are registered with the Service Tax Department under the service category of 'steamer Agent' and 'Cargo Handling Services'. The services rendered by the appellants are (i) Conveyance/Communication Charges (ii) Misc. Charges (iii) Transportation Charges (iv) Supervision charges (v) Water Supply Charges (vi) Agency Fees (vii) Stevedoring Charges (viii) Forklift Charges (ix) Trailor hire Charges (x) Crane/Wharfage Charges (xi) Boat Hiring Charges (xii) Barge hire Charges (xiii) Documentation charges (xiv) Pilotage charges (xv) Tug hire Charges and (xvi) Handling Charges. The adjudicating authority has confirmed the demand of Rs. 11,22,286/- and Rs. 5,97,352/- along with interest vide OIA No. 03/BVR/Addl. Commr./2007 dated 29-1-07 and OIO No. 10/BVR/Addl. Commr./2007 dtd. 28-3-2007 respectively and also imposed penalty under Section 75A, 77 and 78 of the Finance Act as the above said services provided by the appellant falls under the category of 'Port Service' on which the service tax become leviable w.e.f. 1-7-2003. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf or by a person authorized by port - Repair of vessel is not port service as it is not done by port" I have also gone through the Hon'ble CESTAT judgment in the case of Velji P. & Sons (Agences) Pvt. Ltd. & Anr. v. CCE, Bhavnagar wherein held that "Service Tax - Port service - Section 65 of Fianace Act, 1994 - Appellant-CHA is rendering service of handling, stevedoring, loading, unloading, tug hire and labour arrangement - Not port service. Service Tax - Port service - Section 65 of Finance Act, 1994 - 'Authorisation' - Interpretation - Licence - issued by Port authorities for undertaking activities which are not required to be performed by port authorities, in port area, is not authorization contemplated in definition of Port service……." Further in view of Para 6 of the said judgments wherein it discussed that "Licences issued by the Port authorities cannot be considered as authorization. Such licences are issued by the Port authorities to all the persons working in the Port to ensure the safety and security of the Port area and does not confer any power or authority of the Port on the persons so issued with the licence." And Para 8 of the said judgment clarifies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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