9911796707
TMI Blog2008 (1) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 "Storage and Warehousing Services" under Section 65 (102) of Finance Act, 1944 (sic) (1994). 5. We have examined the position. We find that the services provided by the Applicant at the CFS are in respect of both export as well as import cargo. While the Applicant is currently levying and paying Service Tax on services provided in respect of import cargo, they are not levying and paying Service Tax on services provided in respect of export ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constitute "technical testing and analysis service" contemplated under the law. Those laboratories are also not subjected to, including in relation to the drawing of blood samples, service tax, treating those tests and analysis as relating to human beings. The services rendered by the appellants drawing, processing and forwarding of samples is integral to the testing of those samples. As already noted, one of the impugned orders has also noted that the drawing of te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 specified the levy. In the present case, clearly the intention of the legislature is not to impose any levy at all on testing or analysis of human beings or animals. Therefore, the contention of the learned SDR to the contrary is not a legally correct viewed." 7. Having heard the learned Counsel and closely perusing the order passed by the Tribunal, we are of the considered view that this appeal is liable to be dismissed because in pith and substance, the activity o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exported. A doubt has been raised as to whether service tax would be leviable on cargo handling service at Agra. It is clarified service provided in relation to any cargo which is meant for export, would not be taxable irrespective of the fact that it reaches the place of export after transshipment. However, the relevant documents should show that the Goods are for export. 8. A point has been raised by Airports Authority of India (AAI) as to whether service tax will be leviable in respect of handl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
