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TMI Blog2008 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... export goods to M/s. Maersk Logistic India Pvt. Ltd. (hereinafter referred to as MLOG for short) is taxable under Section 65 (102) of the Finance Act, 1994; he confirmed demand of Service Tax made in the Show Cause Notice to the extent of Rs. 53,66,874/-; ordered MIPL to pay interest under Section 75 of Finance Act, 1994 and also imposed penalty of equal amount under Section 76 of Finance Act, 1994 for failure to pay service tax when it was due and also imposed penalty of equal amount under Section 78 of Finance Act, 1994 because the charge of suppression is proved from 1-2-2005. 3. Heard both the sides and perused the records. 4. The brief facts of the case are that MIPL are the holders of Service Tax Registration for the taxable services under the category of "Cargo Handling Services", "Storage Warehousing Services" "Goods Transport Agency". The main issue involved in the instant case is whether services provided by MIPL to MLOG and other clients by providing space for storage of export goods comes under the heading for 'Cargo Handling Service" under Section 65 (23) of the Finance Act, 1994 and for that reason or for any other reason gets excluded from entry for "Sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural produce or any service provided by a cold storage." 17.3 It is very clear from the contract entered into by MIPL with MLOG that they were providing services for storage and warehousing and charging MLOG for that. So the services are clearly taxable." 9. We find that similar issue has been dealt with by the Punjab and Haryana High Court in the case of Commissioner of Central Excise, Ludhiana v. Dr Lal Path Lab (P) Ltd reported in 2007 (8) S.T.R. 337 (P H) where the issue involved was whether the services rendered by the assessee-respondent in that case fall under the definition of the "Business Auxiliary Services" or "Technical Test and Analysis Services". We quote below the extracts of the relevant paras from the said judgment of the Punjab and Haryana High Court: '5. On further appeal filed by the assessee-respondent, the Tribunal came to the conclusion that the activities of the assessee-respondent were not covered by the provisions of Section 65 (19) (ii) of the Act. The view of the Tribunal is discernible from paras 11 to 14 of its order, which reads as under "11. There is no dispute that testing and analysis carried out in the specialized laboratories ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the specific entry no tax is payable. This approach is contrary to the scheme of the legislation. What is specifically kept out of a levy by the legislature cannot be subjected to tax by the revenue administration under another entry. 13. There is also no substance in the learned SDR's contention that since through definition, testing in relation to human beings or animal is excluded from the levy, those tests and analysis are liable to be taxed under some other general heading. Legislature has specifically recognized technical testing and analysis as a separate service for the purpose of levy. As to how the technical test and analysis are to be taxed under that heading is also for the legislature to decide. In the present case, through definition, the legislature has excluded "testing or analysis of human beings or animal" outside the levy. The definition clearly states the legislative intention not to impose any tax on such excluded technical testing and analysis. If the legislature had any intention to tax the testing or analysis in relation to human being or animal at a different rate than other technical test and analysis service, the legislature would have separately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is rendered by the assessee-respondent like putting across or dropping of the name of the principal company, it would become part of the definition of 'Business Auxiliary Service' within the meaning of Section 65 (19) (ii) of the Act. The view taken by the Tribunal is unassailable and deserves to be upheld.' 1 7. The ratio of the above decision seems to be equally applicable to the applicant's case. Prima facie , the storage and warehousing services provided by the applicants within the CFS should be regarded as "in relation to the cargo handling services". 8. Further, the Annexure II to Circular F. No. B 11/1/2002-TRU, dated 1-8-2002, highlights the activities which are not taxable as they are part of the whole activity of providing 'cargo handling service. Relevant extracts of the circular are as under: "6. All goods meant for export are excluded from the scope of this levy. There may be cases where goods may be transhipped at a place other than the place of packing before reaching a place from where it is exported. For example goods are packed say at Agra for transportation to Bhopal where it is transhipped and ultimately reaches Mumbai, from where it is export ..... X X X X Extracts X X X X X X X X Extracts X X X X
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