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TMI Blog2018 (11) TMI 1158X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of the initial show cause notice dated 26.10.2006. Appeal allowed in part. - ST/14 &15/2008 and ST/19/2010 - A/76929-76931/2018 - Dated:- 15-11-2018 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI V.Padmanabhan, Member (Technical) Shri Pulak Kumar Saha Shri Manish Jalan, CAs for the Appellant Shri S.S.Chattopadhyay, Suptd. (AR) for the respondent. ORDER Per Shri V.Padmanabhan : The issues involved in these three appeals are common and relates to the same appellant for different periods. Hence, they are taken up for hearing and disposal through this common order. The details of the three impugned orders are as follows: Appeal No. O-I-O No. Date Period Involved Amount Involved (Rs.) SCN dated ST/14/2008 Commr./BBSRI/ St-06/2007 dated 30.10.2007 16.07.2001 to 31.03.2006 8,18,98,432 26.10.2006 ST/15/2008 Commr./BBSRI/ St-14/2007 dated 28.12.2007 01.04.2006 to 31.03.2007 4,11,56,523 12.10.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking the extended period of limitation (covering the five years period from 2001-2006). Subsequently, show cause notice dated 12.10.2007 (covering the period 01.04.2006 to 31.03.2007) and show cause notice dated 21.10.2008 (covering the period dated 01.04.2007 to 31.03.2008) were issued. These three show cause notices resulted in confirmation of service tax under the category of Port Services through issue of the three Order-in-Originals which are under challenge in the present appeals. 2. Shri Pulak Kumar Saha Shri Manish Jalan, CAs appeared for the Appellant and Shri S.S.Chattopadhyay, Suptd. (AR) appeared for the respondent. 3. Ld. CA challenged the impugned orders mainly on the following grounds: i) He submitted that the activities are not liable to payment of service tax under Port Services. The service tax on Port Services becomes liable in respect of any service provided within a port in relation to vessels or goods. In the case of the agreement of the appellant with railways, such services were provided not in relation to vessels or goods, but in relation to railway freight. In this connection he referred to the circular issued by the Railway Board vide Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides and perused the appeal records. 6. We have perused the copy of the agreement entered into by the appellant with the East Coast Railway. As per the agreement the appellant got the exclusive authority to provide the services of receiving and delivering, transporting booking and dispatching the goods originating in the vessels in the Port and intended for carrying by the neighboring Railways or vice versa. The scope of the agreement is to apply to all description of traffic interchanged between the Port Trust Railway and Southern Eastern Railway. The Port Trust is paid by the Railways for providing such services at the rate notified from time to time known as Terminal Charges . The dispute is regarding the liability to pay service tax on such Terminal Charges. 7. The adjudicating authority was of the view that the appellant is in the position of a service provider to Railways. Further, he held that all the services provided by the appellant are in relation to goods and further that such services are provided within the port area. As such he ordered payment of service tax under the category of Port Services. 8. We have perused the opinion given by the CBEC with re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves clause 10(i) 9. Restoration of track - clause 10(ii) 10. Assessment of damages caused due to accident clause 10(iii) 11. Enquiry as regards accidental claim and compensation clause 11 12. collection of freight - clause 18 13. Remittance of freight and other charges into the Reserve Bank of India - clause 19 14. Accounts maintenance - clause 20. 15. Out of these services, Sl. nos. 12, 13 and 14, namely the collection of freight, remittance of freight/other charges into the Reserve Bank of India and accounts maintenance, are the main activities according to department which would fall within the definition of Business Auxiliary Service. For better appreciation, the definition of Business Auxiliary Service as it stood from 1-7- 2003 to 9-9-2004 and from 10-9-2004 onwards is as under :- During the period 1-7-2003 to 9-9-2004 During the period from 10-9-2004 to 27-8-2007 (19) business auxiliary service means any service in relation to, - (i) promotion or marketing or sale of goods produced or provide by or belonging to the client; or (ii) promotion or marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the learned Consultant is that sub-clause (iv) of section 65(19) would be applicable only if the activities are incidental or auxiliary to the activities mentioned in sub-clauses (i), (ii) and (iii) whereas the contention of department is that the activities of billing, collection or recovery of cheques, accounts and remittances mentioned in sub-clause (iv) by themselves would be activities falling under the definition of Business Auxiliary Service. On bare perusal of the definition as noticed above, we have to say that the contention raised by the assessee does not hold water. The definition, as it stood prior to 10-9-2004, expressly mentions the words billing, collection or recovery of cheques, accounts and remittances which are the services falling under Sl. Nos. 12 to 14 out of the fourteen services rendered by the assessee. It is not necessary that such services should be incidental or auxiliary to the services mentioned in sub-clauses (i), (ii) and (iii). As rightly argued by the department, the services of billing, collection of freight, etc., are stand alone services by themselves and would qualify to be Business Auxiliary Service. 17 .Another contention raised ..... X X X X Extracts X X X X X X X X Extracts X X X X
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