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TMI Blog2017 (3) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... manner, security X-ray, scanning and loading of cargo for outward movement by aircraft. These activities are not relating to storage and warehousing of cargo - The cargo brought by exporters are not for storage or warehousing in the airport. The cargo is brought for shipment and the shipment happens at the earliest available opportunity. Till the shipment, the cargo is held for a short duration by the appellant. During this duration, various activities to make the cargo fit for shipment is undertaken - As such, appellant are not involved in providing storage and warehousing service with reference to the cargo - there is no tax liability under this tax entry for the appellant upto 09/09/2004. Admittedly the appellants are an airport autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the respondent ORDER Per. B. Ravichandran The appeal is against order dated 17/03/2010 of Commissioner (Adjudication), Service Tax, Delhi. The appellants are engaged in managing various airports in India. They were registered with the Department for payment of service tax under various categories. The dispute in the present case relates to the period from 01/10/2003 to 31/03/2007. The service tax liability was sought to be confirmed on the appellant under the category of storage and warehousing service upto 09/09/2004 and under airport services w.e.f. 10/09/2004. The appellants contended that the services now sought to be categorized under these tax entries were actually cargo handling services and as they relate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port services as a specific tax heading, the learned Counsel submitted that the classification of their activity will continue to be under cargo handling service as the same is more specific than a general airport service . 3. The learned Counsel strongly contested the demand on the question of time bar also. The demand in the present case was issued invoking allegation of suppression of fact, willful misstatement, with an intention to evade tax. The appellant is a Government body coming under the Ministry of Civil Aviation and created by an Act of Parliament. There can be no malafide intention on their part while dealing with the tax matters. The learned Counsel submitted that officers of DGCEI conducted enquiry earlier also and a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that based on the submissions made and the findings recorded in the impugned order, that the appellants are basically engaged in various composite activities starting from receipt, shifting, handling, loading, packaging in suitable manner, security X-ray, scanning and loading of cargo for outward movement by aircraft. These activities are not relating to storage and warehousing of cargo. To complete these processes some time is taken and during this time, the cargo is held by the appellant in a secured area. The cargo brought by exporters are not for storage or warehousing in the airport. The cargo is brought for shipment and the shipment happens at the earliest available opportunity. Till the shipment, the cargo is held for a short duratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004. 7. The demand for service tax is also contested on the question of time bar. We note that when the cargo handling service was introduced in 2002, clarifications were issued to the appellant, on their request, to state that the services relating to export cargo are not liable to tax. Admittedly, the appellants continued to provide similar set of service all through out. This fact is not disputed. However, after the introduction of specific service under the head airport services wherein all type of services rendered within the specific area of airport is sought to be taxed under one heading, the appellants liability arises. There is no contest to the fact that appellants are airport authority and are providing service in the said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn and, hence, there is a suppression of fact. As already mentioned here-inabove, that these activities were not subjected to levy as they were relating to export cargo till 09/09/2004. The all covering entry of airport service was brought in w.e.f. 10/09/2004. As such, we find no justification for the allegation of fraud, collusion, willful mis-statement and intention to evade tax against the appellant. Accordingly, the service tax liability shall be restricted to the normal period. On the same reasons we set aside the penalty imposed on the appellant under Section 77 and 78 of the Finance Act, 1994. 8. In view of the above discussion and analysis, we uphold the liability of the appellant for service tax under airport services. We ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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