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TMI Blog2008 (10) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... ss, learned advocate and G. Venkatesh, learned consultant appeared on behalf of the appellants and Mrs. Sudha Koka, learned SDR for the revenue. 3. We heard both sides. 4. In the impugned order, the Commissioner has demanded Service Tax from the appellants on the following taxable services for the period mentioned below. (i) An amount of Rs. 11,47,647 under 'Customs House Agent Services' for the period from 2000-01 to 2003-04. (ii) An amount of Rs. 5,89,439 under 'Storage Warehousing Services' for the period from 2000-0 1 to 2003-04. (iii) An amount of Rs. 1,58,742 under 'Cargo Handling Services' for the period from 16-8-2002 to 2003-04. (iv) An amount of Rs. 1,41,642 under 'Business Auxiliary Services' for the period from 1-7-2003 to 2003-04. (v) Total Service Tax demand of Rs. 20,37,465. 4.1 Further penalties have been imposed in the following manner: (i) Rs. 200 per day under section 76 of the Finance Act, 1944. (ii) Rs. 1,000 under section 77 of the Finance Act, 1944. (iii) Rs. 32,00,000 under section 78 of the Finance Act, 1944. 4.2 The period covered is from 2000-01 to 2003-04. 5. The appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arranging for transportation. 6.1 It was stated that the import console handling charge, CC Fees, DO fees are not taxable under the 'Customs House Agent' service. It was urged that the taxable service of Custom House Agent as defined in section 65(105)(h) as a service provided to a client, by a Custom House Agent in relation to the entry or departure of conveyances or the import and export of goods and 'Custom House Agent' means a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of section 146 of Customs Act, 1962. The department has confirmed the demand of Service Tax of Rs. 11,47,647 on Sea Import Console Handling Charges, CC fees and DO fees. It was submitted that the Charge Collect Fee (CCF) varies from 0-5 per cent of the freight amount. In case the freight charge is not pre-paid, the appellant collects freight from the consignees in India as there is no option available for the customer to make the payment towards freight in foreign currency directly to the oversea associate. It has to be routed through appellants only. In consideration of this work, the appellant collects a fee called 'Charge Collect Fee& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Further, reliance was also placed on the following decisions: (i) Kin-ship Services ( India ) (P.) Ltd. v. CCE C [Final Order No.61 of 2008, dated 18-1-2008]. (ii) Excel India (P.) Ltd v. CST [Stay Order No. 778 of 2008, dated 4-8-2008]. 6.8 An amount of Rs. 5,89,434 has been demanded as short paid under the category of 'Storage and Warehousing Services'. It was stated that prior to 16-8-2002, there was no tax on the 'Storage and Warehousing Charges'. Further, it was stated that after 16-8-2002, the appellants had paid the Service Tax, therefore, this could not have been confirmed. Prior to 16-8-2002, it was stated that by mistake the appellants got registered under the category of 'Storage and Warehousing Services'. Mere registration under a particular category of taxable service will not make the appellants a service provider. The following decisions were relied on: (a) Mahavir Generics v. CCE 2004 (170) ELT 78/[2007] 6 STT 523 (Delhi-CESTAT). (b) Metlex India v. CCE 2004 (165) ELT 129 (SC). (c) CCE v. Siemens Ltd. [2006] 4 STT 54 (New Delhi-CESTAT). (d) Power Best Electricals Ltd. v. CCE [2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot promote the business of shipping lines. It was stated that the said commission was exempted under Notification No. 13/ 2003, dated 20-6-2003. Reliance was placed on the decision of the Hon'ble Tribunal in the case of CCE v. Chandan Chemicals [2007] STT 556 (New Delhi-CESTAT). 6.11 It was also stated that they were under the bona fide belief that service pertaining to export does not fall within the purview of Service Tax. It was urged that the appellants are actually providing service to the Indian subsidiary and are thus, a secondary service provider to an-exporter of service. The CBEC Circular No. 56/5/2003, dated 25-4-2003 describing Service Tax as a destination based consumption tax, clarifies that services of such secondary service provider are not taxable. Therefore, there was a prayer to set aside the demand of Service Tax. 6.12 It was urged that the appellants had been filing Service Tax Returns and paying the tax on the services undertaken by them. The very fact that substantial part of the present demand does not survive indicates that there was no intention to evade payment of Service Tax. The demand proceeds on a comparison of the ST-3 Returns wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation part for the clearance of goods from the customs for import/export. After the clearance, the goods have to be transported from the warehouse or from the godown. For these activities CHA collects certain fees and they cannot come under the category of CHA. In any case, the appellants have relied on decisions of this Tribunal rendered in certain cases. Those case-laws are clearly applicable and therefore, the demand under the category of CHA cannot be sustained. 8.2 As regards 'Storage and Warehousing Charges' are concerned, the appellants themselves accept that with effect from 16-8-2002, they would be liable for Service Tax. Therefore, any tax demanded prior to that period cannot be sustained. 8.3 As regards 'Cargo Handling Services', one has to go by the definition of 'cargo handling' which involves various activities. 'Cargo Handling Services' is defined in the following manner: Cargo Handling Services as defined under section 65(23) of the Finance Act, 1994 Cargo handling service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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