9911796707
TMI Blog2008 (5) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... . Shri Rajesh Ravindran, Adv, for Appellant Shri Tarun Govil, Jt. CDR for Respondents [Order Per M.V. Ravindran Member (J)] - This appeal is directed against Order-in-Original No. 37/MS (26) Commr./ RGD/06-07 dated 15.2.2007 vide which the adjudicating authority has confirmed the demand of Service Tax and also imposed penalties under the provisions of Sec. 77 and 78 of the Finance Act, 1994. The relevant facts that arise for consideration are that the appellants herein are holder of Central Excise Registration No. AAAC4464BXM001 for the manufacture of various excisable goods and in order to have good logistical support in respect of inward and outward movement of the goods, the appellants had their own jetty' facilities, barges, floatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges, floating cranes and tugging facilities etc. It is submission that these barges, floating cranes and tugging facilities were hired out by the appellant and was not used by the hirers in the jetty constructed by the appellant, but used somewhere else. It is his submission that in view of this they would not fall under the category of service providers of "port services". It is also his submission that when they applied for the construction of jetty, the Chief Port Officer of Maharashtra had clearly given them the permission, subject to the conditions that the jetty and infrastructure facilities will have to be made available to the Chief Port Officer, when not in use by appellants. He also draws our attention to the lease deed entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port which itself will come within the ambit of category of service providers under "port services". It is his submission that the appellant has hired out the barges, floating cranes and tugging facilities and hence gets covered under the definition of "port services" as defined in Sec. 65 (82) of the Finance Act, 1994. It is his submission that the main aspect to be looked into in this case is that the definition of the "port services" includes the words "in any manner in relation to a vessel or goods" are dependent and interconnected with each other. He reiterates the findings of the adjudicating authority. 4. We have considered the submissions made at length and perused the records. Office of the Chief Ports Officer, Maharashtra State v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly stipulates the obligation of the Maharashtra Maritime Board and the persons who are engaged in the erection of private ports subject to conditions. It is also seen from the deed of lease that the jetty which is constructed by the appellant if used by any third party, cargo related charges will be paid to the Maharashtra Maritime Board. We find from the records that no such charges are paid by any one to the Maharashtra Maritime Board, in order to indicate that the jetty which has been constructed by the appellant was used for handling out of cargo or any other similar goods, by other person than the appellant. 5. It is undisputed in this case that income which is sought to be taxed under the category of "port services" was the rental in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the licence, unless the licence specifically mentions about it. To take a simple analogy the person issued with driving licence, under no stretch of imagination, can be said to be functioning as Road Transport Authority. Authorization may be issued by way of licence, but not all licences are authorizations. Hence, the licences is sued by Ports to various agencies (under Sec. 123 of MPTA) should not be confused with the authorization (may be by way of licence) issued under Section 42 of MPTA". The difference between authorization under Section 42 of MPTA and a licence issued under Sec. 123 is clearly understood if the functioning of private container terminals (for e.g. P&O) terminal in Nhava Sheva in Mumbai, Visakha Container Terminal at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue carried this matter to the Hon'ble Supreme Court and the Supreme Court dismissed the civil appeal filed by the revenue. Since an identical issue of liability to Service Tax under the head of "port services" for hiring of barges, floating cranes and tugging facilities is already decided by the Division Bench in favour of the assessee, we find that the issue involved in this case is squarely covered in favour of the appellant. Accordingly, we find merits in the submissions made by the ld. counsel and we hold that the income received as rent charges by the appellant, by hiring out the barges, floating cranes and tugging facilities, would not get covered under the category of the "port services". The impugned order holding otherwise is unsus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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