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TMI Blog2012 (7) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has been able to make out a prima facie case as far as extended period is concerned - as extended period should not have been invoked and stay was granted directing the appellant to deposit an amount of Rs.25 lakhs, as condition of hearing of their appeal - in favour of assessee - ST/358/2010 - S/999/WZB/AHD/2012 - Dated:- 18-6-2012 - Archana Wadhwa, P Babu, JJ. For Appellant: Shri V M Singh, Cons. For Respondent: Shri S K Mall, AR Per: P Babu: This is an appeal filed by M/s. Gujarat Maritime Board, Veraval against the demand of service tax of Rs.2.62 crores and imposition of an equal penalty. The contention of the appellant is that the provisions of service tax have been misconstrued and wrongly applied as also the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Ports Act, 1908 are not applicable to interpretation of "port service" defined under Section 65(82) of the Finance Act, 1994 in absence of statutory intention thereof. (b) Stevedoring in a major or minor port is a "port service" within the meaning of this expression defined under Section 65(82) of the Finance Act, 1994 following judgment of Hon'ble High Court of Karnataka in Konkan Marine case - 2009 (13) STR 7 (Kar). (c) Activities/operations like intercarting (transportation of cargo after its unloading from a vessel, to a place of storage within the port area), storage of cargo in plots allotted by the Port, blending of different grades of coal in the port area and other kinds of cargo handling in the port area (other than e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the finding that all the services provided by the appellant would get included in the definition of port services. As such, they were required to deposit service tax on the entire value of such services. However, I find that if that be so, the fact that the issue stands subsequently decided by the larger bench decision, is required to be taken as` factor leading to bonafide belief. on the part of the appellant as regards non taxability on some services being provided at the port area. 3. It is further seen from the order of the adjudicating authority that extended period stands invoked by observing as under:- "The assessee had suppressed the facts regarding the correct value of the taxable services i.e. port charges inasmuch as they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 to 31.3.09. Though, I find that the detailed figures in respect of the said period are not readily available, going by the law of average, I think fit it and proper to direct the applicant/appellant to deposit an amount of Rs.25 lakhs, as condition of hearing of their appeal. I order accordingly. The period to deposit the amount is required to be pronounced at the time of recording of majority order. Archana Wadhwa, Member (J) DIFFERENCE OF OPINION Whether the appellant is required to deposit an amount of Rs. 3 crores as directed by learned Member (T) or the deposit is to be restricted to Rs. 25 lakhs as held by Member (J). P Babu, Member (T) Archana Wadhwa, Member (J) Opinion of 3rd Member on Difference of Opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been imposed. 3. The appellant filed a Stay Petition and requested for waiver of pre-deposit and stay against the recovery of tax, interest and penalty. The Members of the Bench, who heard the Stay Petition, had a difference of opinion which is as under: "Whether the appellant is required to deposit an amount of Rs.3 crore as directed by the Member (Technical) or the deposit is to be restricted to Rs.25 lakhs as held by Member (Judicial)." 4. Heard both the sides. The ld.Counsel for the appellant submitted that the appellant was required to pay the Service Tax on the gross value received for the service provided and therefore the appellant entertained a bonafide belief that they had discharged correct amount of Service Tax as per la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the ld.A.R. submits that in this case, the extra amount collected is nothing but the services provided by the appellant to the customer in the Port and therefore the services are covered by Port service. The reduction in the charges had occurred because the service receiver has constructed a jetty which normally the appellant would have done and the appellant have reimbursed the service receiver by offering rebate in the service charges. Therefore, the amount spent by the service receiver for construction of jetty is nothing but an advance payment to the appellant to be adjusted over a period of time as and when the service is received from the cost of services. Therefore, he submits that the stand taken by the Revenue is co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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