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TMI Blog2023 (4) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... (23) ibid. clearly excludes the handling of export cargo and hence, the lis between the appellant and the Revenue here is whether the exclusion tantamounts to exemption and consequently, whether the same could be brought within the definition under Rule 2(e) ibid. The services which are excluded cannot be given the colour of exemption just to fit it somewhere so that a benefit flowing from the statute to a taxpayer is denied. The words does not include in the definition of cargo handling service takes the service very much out of the purview of taxability, thereby touching upon the jurisdiction of the taxing authority and hence, the same, at no stretch of imagination, could be held or equated with an exempted service. Hence, the services rendered by the appellant in this case, insofar as the same related to the handling of export cargo, is excluded from taxability and thus, the same cannot be brought as exempted under Rule 2(e) ibid. Once it is held as excluded , there is also no scope to consider the same as an exempted service just for the purposes of Rule 6 of the CENVAT Credit Rules, 2004. The Revenue is not justified in demanding the Service Tax by tre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al No. 14/ADC/ST/2011 dated 30.12.2011. 3. Feeling aggrieved, the appellant preferred appeal before the First Appellate Authority and the First Appellate Authority having dismissed their appeal by upholding the demands in the Order-in-Original, the same has been assailed by the appellant in this appeal before this forum. 4. Heard Smt. Radhika Chandrasekhar, Learned Advocate for the appellant and Shri M. Ambe, Learned Deputy Commissioner for the Revenue. 5. The contentions of the Learned Advocate for the appellant could be summarized as below: - (i) The appellant is not engaged in providing any exempted service, as defined under Rule 2(e) of the CCR, 2004. (ii) The Fork Lifts and Cranes were used for handling the cargo meant for export, which per se cannot be treated as an exempted service. (iii) There is no provision in the Finance Act to treat the activity as exempted unless it is so specified under Rule 2(e) ibid. (iv) Any activity on which no Service Tax is payable does not make such activity an exempted service. (v) These services, alleged to have been provided by the appellant, were in respect of export cargo and hence, the same is outside the ambit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes the handling of export cargo from taxable service and thus, Service Tax is not leviable under Chapter V of the Finance Act, 1994 as the same is exempted. 6.2.1 He would distinguish the ratio of the case in M/s. Konkan Marine Agencies (supra) on the ground that the facts were totally different and so also the applicable Service Tax provisions. 6.2.2 With regard to M/s. Ruth Shipping Agencies Pvt. Ltd. (supra), he would contend that the said order dealt with the secondary services used by the primary service provider, that is to say, the case dealt with brokerage charges from steamer agent for providing services under business auxiliary service, which fact is not applicable to the facts of the case on hand. 6.2.3 Similarly, he would submit that the facts in the other cases relied upon by the Learned Advocate for the appellant, like M/s. Reliance Industries Ltd. (supra), M/s. India Poly Fibres Ltd. (supra), M/s. Steelco Gujarat Ltd. (supra), M/s. Samcar Glass Ltd. (supra), M/s. Panchmahal Steel Ltd. (supra) and M/s. Punjab Stainless Steel Industries (supra) dealt with inputs used in export goods, either in MODVAT regime or CENVAT regime and that in all those cases, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (zn), (zo), (zq), (zr), (zs), (zt), (zu), (zv), (zw), (zx), (zy), (zz), (zza), (zzb), (zzc), (zzd), (zze), (zzf), (zzg), (zzh), (zzi), (zzk), (zzl), (zzm), (zzn), (zzo), (zzp), (zzq), (zzr), (zzs), (zzt), (zzu), (zzv), (zzw), (zzx), (zzy), (zzz), (zzza), (zzzb), (zzzc), (zzzd), (zzze), (zzzf), (zzzg,) (zzzh), (zzzi), (zzzj), (zzzk), (zzzl), (zzzm), (zzzn), (zzzo), (zzzp), (zzzq), (zzzr), (zzzs), (zzzt), (zzzu), (zzzv), (zzzw), (zzzx), (zzzy), (zzzz), (zzzza), (zzzzb), (zzzzc), (zzzzd), (zzzze), (zzzzf), (zzzzg), (zzzzh), (zzzzi), (zzzzj), (zzzzk), (zzzzl), (zzzzm) (zzzzn), (zzzzo), (zzzzp), (zzzzq), (zzzzr), (zzzzs), (zzzzt) (zzzzu), (zzzzv) and (zzzzw) of clause (105) of section 65 and collected in such manner as may be prescribed. 12.1 Rule 2(e) of the CENVAT Credit Rules, 2004, during the relevant period, reads as under: - Rule 2. Definitions. In these rules, unless the context otherwise requires, - .. (e) exempted services means taxable services which are exempt from the whole of the service tax leviable thereon, and includes services on which no service tax is leviable under section 66 of the Finance Act; 12.2 Rule 2(e) ibid., as it stood dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arified that service consumed/provided in India in the manufacture of goods which are ultimately exported, no credit of service tax paid can be availed or reimbursed at present as inter-sectoral tax credit between services and goods are not allowed. 15.1 The above discussion identifies exclusion and exempted as two different categories. Broadly, for our understanding we may correlate this with the jurisdiction of civil courts. Under taxing statutes, there is no dispute that against an Assessment Order or Adjudication Order, an appeal lies with the authorities specified and that excludes the jurisdiction of civil courts. To continue further, every citizen needs to file Income Tax Return, subject to exemptions, like those earning less than Rupees Five Lakhs (as fixed by the Central Government in the Annual Budget) need not file the same, but it excludes those who are having no income at all. 15.2 Viewed thus, the services which are excluded cannot be given the colour of exemption just to fit it somewhere so that a benefit flowing from the statute to a taxpayer is denied. 16. We are thus of the clear view that the words does not include in the definition of car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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