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TMI Blog2023 (4) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... on from M/S Mundra Port and Special Economic Zone Ltd, Mundra i.e. a port but by virtue of definition of port services under Section 65(82) read with Section 65(105)(zn) of the Act, they are classified as port service and not cargo handling service . It has also been clarified by CBEC vide Circular No. B/11/1/2002-ST, dated 01.08.2002 - the circular states that Cargo handling services are provided in the port also. Whether such service will be covered in the category of port services or cargo handling service? In this context it may be mentioned that port services cover any service provided in relation to goods or vessels by a port or a person authorized by the port. This includes the cargo handling service provided within the port premises. Therefore, to this extent there may be an overlap in cargo handling service and the port service. However, since port services cover all the services in relation to goods and vessels and therefore more specific to port, the service provided in a port in relation to handling of goods would be appropriately covered under port service and no separate levy will be attracted under the category of cargo handling agency service. Similar would b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/- already deposited by the appellant has been appropriated in the impugned order towards their total tax liability of Rs. 77,22,854/-. Now the appellant is before us against the said confirmation of demand and interest and imposition of penalties. 03. The Learned Counsel arguing on behalf of the appellant has challenged the impugned order mainly on the ground that the service under the category of port service also include the service of cargo handling service and since the service provided by them was a cargo handling service, therefore they were eligible for benefit of service tax exemption under notification 10/2002-ST dated 01.08.2002 which exempted cargo handling service provided to any person by a cargo handling agency in relation to agriculture produce. To explain the nature of their services he stated that that they were engaged in providing services in respect of services of supervision of cargo and survey of bulk cargo in port area to M/s.Mundra Port and SEZ Ltd, Mundra. They were providing these services of cargo supervision / survey work in relation to cargo which comprise of agriculture produce as well as non-agriculture produce. As per contract, the scope of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classifiable under 'Cargo Handling Service' without any dispute. Hence, the appellants submit that their Service Tax registration under 'port Service' should not construed as incorrect and the issue on hand should be solely decided on the nature of taxable service which they are rendering. 3.2 Based on the above submission the appellant prayed that the appellant were only liable for a tax liability of Rs. Rs.39,88,858/- from 2006-07 and they had already paid a service tax of Rs. 81,09,567/-. Since the appellants has paid excess amount than demanded in the impugned order, the demand confirmed in the impugned order has become infructuous. 04. On the other hand, Learned Departmental representative have vehemently re-iterated the findings in the impugned order that the service provided by the appellant was duly covered under the category of port service defined under section 65(105)(zn) of the Act and benefit of notification no. 10/2002-ST dated 01.08.2002 was not admissible to the appellant since the said benefit was available for the service of cargo handling service only and not to the port service provided by the appellant. 05. We have carefully gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices since they are authorized by the Port Authority and services are in relation to vessels or goods. Since the noticee fulfilled both the conditions, their services are correctly classified under the category of Port Services .On going through the notification, I find that the notification grants exemption to a cargo handling agency providing taxable services in relation to agricultural produce or goods intended to be stored in a cold storage. In the present case, the noticee is not engaged in providing cargo handling services to agricultural produce or goods intended to be stored in a cold storage. The noticee has not brought on record any evidence to prove that they are engaged in such activities. In the absence of such evidence, I am unable to extend the benefit of this notification to the noticee. Thus, it is an admitted fact that the noticee has rendered services of supervision over internal shifting of cargo within port area, loading, unloading of cargo and reporting thereof. These services would have been covered under the category of cargo handling service if provided outside the port area and therefore it can be construed that the appellant are a cargo handling ..... X X X X Extracts X X X X X X X X Extracts X X X X
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