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TMI Blog2013 (5) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under Section 65(76b) then adjudication has to be upheld. In this case the controversy arose only because packing is covered by both sub-sections (23) and (76b) of Section 65. However, we find a distinction between the “packing” covered by sub-section (23) and the “packing” covered by sub-section (76b). In our view, the packing covered by sub-section (76b) is the basic packing of products either in the course of manufacturing or subsequent to manufacturing for marketing. This work is not done by the appellant because the appellant is not a manufacturer or packer for manufacturers of goods. On the other hand, the packing i.e. covered by the broad definition of “cargo handling service” under sub-section (23) is the group packing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zing as packaging activity falling under Section 65(76b) of Finance Act, 1994 in writ proceedings on the ground that order issued is without jurisdiction. 2. The learned Single Judge however following the decision of the Honourable Supreme Court in Union of India v. Zaicon Electronics, reported in 2010 (255) E.L.T. 490, dismissed the WP(C) for the reason that adjudication order on facts and law has to be contested in statutory appeal and not in writ proceedings. It is against this judgment, this Writ Appeal is filed contending that there is no controversy on facts, and even on the admitted facts the adjudication is without jurisdiction. 3. We have heard Adv. Shri V.B. Jinnah appearing along with Adv. Smt. S. Chithra and learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 65(105)(zzzf) of the Act. Learned Standing Counsel also resisted the maintainability of the Writ Petition for the reason that mixed questions of law and facts arise in adjudication, which could be reversed only in appeal by a statutory authority, who has to appraise findings on facts rendered by the adjudicating authority, apply the law and decide the appeal. 5. The first question to be considered is whether the learned Single Judge is right in rejecting the WP(C) at the threshold without going to the merits of the case on the ground that correctness of facts recorded by the adjudicating authority has to be gone into only by a statutory appellate authority. Learned counsel appearing for the appellant, submitted that facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, are extracted hereunder for easy reference : 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;) Section 65(76b). - packaging activity means pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try (76b) above talks about basic and first packing of goods by the manufacturer like pouch-filling, bottling, labelling or imprinting of the package, the activity carried on by the appellant is palletizing which is group packing of goods which includes goods already in packed form and the purpose is only to protect the goods in the course of loading, transport and unloading. Packaging in certain cases amount to manufacture and such packaging is excluded from the purview of sub-entry (76b) itself as the transaction attracts excise duty on manufacturer. So much so, the packaging activity covered by entry (76b) that attracts service tax are packing of manufactured goods, which may be by way of pouch filling, bottling, labelling etc. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds for sale in international markets at competitive rates. In fact all kinds of incentives such as tax and duty exemptions are allowed for export cargo to make the Indian goods competitive in international markets. If service tax is demanded at the last point packaging of goods for loading into containers or ships, the same will certainly lead to escalation of cost for export by way of freight increase, and that is the reason why service tax exemption is provided for handling of export cargo. We, therefore, feel the adjudication order defeats the very purpose of exemption covered by sub-section (23)(b) of Section 65. 10. For the reasons stated above, we allow the Writ Appeal by vacating the judgment of the learned Single Judge and allow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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