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TMI Blog2024 (5) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... ces provided to the appellant by M/s. NCCL and therefore liable to discharge service tax. The period involved in this case 2005 to 2011, that is prior to negative list period and as per the appellant the show cause does not even specify the service under which the services allegedly provided by them would fall. There are substance in the submission of the appellant as they were registered for providing port services but in the instant case as per the department they had received certain services from M/s. NCCL for which they were compensated later through charging of concessional wharfage rate. What services if any were provided by M/S. NCCL to them and under what category of the services these would fall has not been alleged. Therefore the impugned order as quoted above maintains silence relating to nature of taxable services provided. The taxability in present without classification cannot be attached also. Appeal allowed. - MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C. L. MAHAR, MEMBER (TECHNICAL) Shri Jigar Shah, Advocate for the Appellant Shri Anand Kumar, Superintendent (Authorized Representative) for the Respondent ORDER M/s. Gujarat Maritime Boord, Jafarabad (hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned as Grand total Further, the Noticee has paid the Service Tax of Rs. 1.87.828/ alongwith the interest of Rs. 44,766/- on the amount of Rs. 15,34,545/-. Thus, the gross amount of adjustment shall be the value for the purpose of levying service tax under section 67 of Finance Act, 1994. The provision of Section 67 of Chapter V of the Finance Act, 1994 stipulate that Subject to the provisions of this chapter, where service tax is chargeable on any taxable service with reference to its value, then such value shall- i. In a case where the provision of service is for consideration in money, be the gross amount charged by the service provider for such service provided or to be provided by him ii. In a case where the provision of service is for a consideration not wholly or partly consisting of money, be such amount in money as, with the addition of service tax charged, is equivalent to the consideration. In other words, the amount of Rs. 1.96 crores straightaway falls within the scope of gross amount under section 67 and liable for service tax. It appeared that during the period from 21.02.2005 to 20.02.2007 the Noticee provided port services to M/s. NCCL Jafrabad and allowed the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-) as per the details given here under:- Period Difference Amount Rate Service tax Payable Education Cess Payable Total Tax Payable 02/05 to 17/04/06 75,00,876/- 10% 7,50,088/- 15002/- 7,65,090/- 18/04/06 to 02/07 52,76,681/- 12% 6,33,202/- 12664/- 6,45,866/- 02/05 to 02/07 68,22,443/- 12% 8,18,693/- 16374/- 8,35,067/- Total 1,96,00,000/- 22,01,983/- 44,040/- 22,46,023/- Therefore, it appeared to the department that the said Noticee has contravened the provisions of (i) Section 67 of the Finance Act, 1994 in as-much-as they have failed to assess the correct value of Taxable services provided by them, as explained in foregoing paras for the period from 21.02.2005 to 20.02.2007; (ii) Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules. 1994 in as-much-as they have failed to make the payment of Service Tax including education cess amounting to Rs. 22,46,023/- as explained in foregoing paras for the period from 21.02.2005 to 20.02.2007 to the credit of the Government within the stipulated time limit; (iii) Section 70 of the Finance Act, 1994 (32 of 1994) read with Rule 7 of the Service Tax Rules, 1994 in as-much-as they have failed to show the correct assessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) Penalty should not be imposed upon them under Section 77 of the Finance Act. 1994 for the failure to disclose their taxable value in their ST-3 return filed to the department. (v) Penalty should not be imposed upon them under Section 78 of the Finance Act. 1994 for suppressing the value of taxable services provided by them before the Department with an intention to evade payment of Service Tax including education cess amounting to total Rs. 22,46,023/- (Rs. Rs. Twenty two lakhs Forty Six thousand Twenty Three only) as discussed hereinabove. Despite various submissions by the party notice was confirmed by lower authorities and therefore feeling aggrieved by order of Commissioner (Appeals), it has filed the present appeal. 4. Appellant has taken various grounds before us and relied upon various case law on different propositions, as follows: No specific category of taxable service is alleged in show cause notice. Demand of service tax under the category of port services cannot survive Shubham Electricals 2015-TIOL-1339-CESTAT-DEL UCB India Pvt. Ltd. 2016 (45) STR 39 (Guj) No Service tax can be demanded on the income of State Government Konkan Railway Corporation Ltd. 2024 (14) CENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case as per the department they had received certain services from M/s. NCCL for which they were compensated later through charging of concessional wharfage rate. What services if any were provided by M/S. NCCL to them and under what category of the services these would fall has not been alleged. Therefore the impugned order as quoted above maintains silence relating to nature of taxable services provided. The taxability in present without classification cannot be attached also. 6. We also find that since, in any case in the matter of Gujarat Maritime Board reported in 2015 (38) STR 776 (Tri. Ahm.) (supra), which was further agitated and concluded by the Apex Court in the matter of Commissioner of Customs-Bhavnagar Vs. Gujarat Maritime Board reported in 2015 (39) STR 529, both the Courts in the case of same appellant and in relation to similar terms as are existing in case of M/s. NCCL, decided there is existence of port services as far the appellants are concerned in the arrangement they have made as per the terms as agreed with M/s. NCCL. The non-mention of such service in S.C.N. makes the same, untenable. 7. Following the aforesaid decision the appeals are allowed with co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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