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TMI Blog2011 (7) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... rala and to take a uniform pattern for levy - even if the appellant is found to be liable for payment of part of the handling charges as attributable to storage and warehousing charges there is no scope for levy of penalty as no contumacious conduct can be presumed in the matter - So much so, penalty in any case will stand vacated - So far as dispute raised on the levy of tax on X-raying charges is concerned, the appellant has conceded the issue in favour of the department and the appeals on that issue will stand dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... are extracted hereunder: "Section 65(102) "Storage and warehousing" includes storage and warehousing services for goods including liquids and gases but does not include any service provided for storage of agricultural produce or any service provided by a cold storage. Section 65(23) "Cargo handling service" means loading, unloading, packing or unpacking of cargo and includes,-- (a) cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight; and (b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods." Senior counsel appearing for the appellant specifically referred to the latter part of section 65(23) which provides for exemption from service tax for the handling of cargo for export or passenger baggage. He has relied on Division Bench judgment of this cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orage and warehousing covered by section 65(102), service tax could be levied on such charges. In this regard what we notice is that appellant is not claiming complete exemption from service tax on "terminal charges" collected and so much of the amount collected for storage and warehousing are subject to service tax. This happens only when retention of the Air cargo or passenger baggage in appellants terminal is beyond 48 hours. Therefore, the only question to be considered is whether retention up to 48 hours of the Air cargo and passenger baggage for X-raying, for completion of all customs formalities and the time taken by the Airlines to lift the cargo could be treated as storage and warehousing for the purpose of levy of tax under section 65(102) of the Act. 5. The contention raised by Standing Counsel that goods are not physically handled by appellant's employees by itself does not mean that appellant is not handling the goods in the terminal building. X-ray unit is in appellant's terminal and customs formalities including inspection are carried out in the said building. The unloading of goods, X-raying, customs inspection and re-loading amount to handling of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... going through the orders and records of the case, what we find is that the department has not conducted any enquiry as to whether appellant is charging varying rates for the same cargo depending on the period of retention of the goods, whatever be the reason, in their terminal. If appellant, charges the same rates for the goods lifted after arrival in the terminal building after all processing and on completion of all formalities, i.e., within 48 hours, then there is no scope for levy of any service tax on the ground of storage and warehousing because appellant is not charging for the same. On the other hand if appellant charges more than the normal tariff of terminal charges on account of delay in lifting the goods within the cut off period of 48 hours, then such charges over the normal rates are certainly attributable for storage and safe custody of goods which squarely falls within the scope of section 65(102) of the Act. Unfortunately none of the authorities including the Tribunal have chosen to find out whether from out of the terminal charges collected by the appellant from the Airlines, any portion is attributable to storage and custody after completion of the formalities a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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