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TMI Blog2024 (10) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... the port, there are some statutory obligation to be performed for smooth operation of the port and such statutory obligations are assigned to different person as in the present case is weighbridge statutory obligation has been assigned to the respondent. Therefore, being a statutory obligation, the same cannot be taxed as held in various judgments cited by the learned counsel for the respondent. Reliance placed in the case of Food Corporation of India [ 2023 (8) TMI 538 - CESTAT CHANDIGARH ] where it was held that ' The Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced or provided by or belonging to clients. As respondents are not concerned with the sale or marketing of the goods, therefore, cannot be said to be provider of incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced. In these circumstances, we find no infirmity in the impugned orders. The appeals are dismissed.' From the above judgment not only on the point of statutory obligation but also on the specific activity of weighment, it was held that the said activity is not liable to service tax. Thus, no inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Without prejudice, he further submits that in various the orders and decisions, it was held that operating weighbridge is not Business Auxiliary Service. The reasoning adopted in the various case laws to arrive at such conclusion squarely applies even to Business Support Service, which is more in the nature of outsourcing service as such. In support, he placed reliance on the following judgments : Deepak Computers 2008 (12) STR 569 (Tri. Del.) Banke Bihari Computer 2008 (12) STR 724 (Tri. Del.) Northern Computer 2009 (13) STR 34 (Tri. Del.) Food Corporation of India 2023 (8) TMI 538-CESTAT Chand. Bhawani Shankar Casting P. Ltd. 2008 (10)STR 213 He also placed reliance on the TRU Circular vide D.O.F.No. 334/4/2006-TRU dated 28.02.2006 wherein it was clarified that providing weighment facility on chargeable basis, does not amount to supporting business of transporters, or drivers for that matter, and the entire basis on which the demand has been proposed, is wholly erroneous. He further submits that the demand anyway is hit by time bar, since under the facts and circumstances of the case, bonafide belief on part of the Respondent is well justified. 4. We have carefully considered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 77 ibid. Commissioner appeals, on an appeal filed by the appellants , upheld the order of the lower authority. Hence, this appeal. 2. Shri Sunil Kumar Mukhi, learned Counsel, appearing for the appellants, submits that FCI, the appellants, have godowns all over the country; However, the department in their wisdom chose to select only the appellants for raising a demand. He submits that the show cause notice does not specify as to under which clause of Business Auxiliary Service Clauses (i) to (vii), the activity undertaken by the appellants falls. He submits that the appellants did not render any service to their customers; they did not receive any consideration for any service; the deduction was on account of recovery of weighment charges and as such it cannot be called as remuneration for any service. Learned counsel relies on Commissioner of Central Excise, Chandigarh Vs Northern Computer 2009 (13) STR 34 (TRI-DEL) and submits that weighment does not constitute provision of any service and the charges thereof are not payment of any consideration. 3. Shri Ravinder Jangu, Learned Authorized Representative, for the Revenue, reiterates the findings of OIO and OIA. 4. Heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner (Appeals) bearing No. 1038/CE/CHD/06, dated 27-10-2006. 2. Heard both sides. 3. The respondent is having a Weighbridge and undertakes weighments of consignments in lorries and issues the slips recording the weight. The Original Authorities held the above activities as rendering Business Auxiliary Service and confirmed a demand of Rs. 71,152/- and imposed penalty under different sections. The Commissioner (Appeals), on appeal by the party, set aside the order of the Original Authority holding that the service of weighing the goods did not relate to promotion or marketing or sale of goods produced or provided by or on behalf of the clients. 4. Both the sides agreed that identical issue has been decided in favour of the party by the Tribunal in the case of CCE, Chandigarh v. Deepak Computer Others in Final Order No. ST/151 to 185/2008 dated 24-6-2008 [2008 (12) S.T.R. 569], wherein it has been held as follows :- We find that in these appeals the respondents are owner of Dharamkanta and they are undertaking the weighment of the goods. We find the Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods produced or provided by or belongi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking the weighment of the goods. We find the Business Auxiliary Service means any service in relation to promotion or marketing or sale of goods, produced or provided by or belonging to clients. As respondents are not concerned with the sale or marketing of the goods, therefore, cannot be said to be provider incidental or auxiliary service to any activity such as promotion or marketing or sale of goods produced. In these circumstances, we find no infirmity in the impugned orders. The appeals are dismissed. CCE vs Cmc Ltd. 2007 (7) STR 702 (T) 6. The learned Counsel, Shri K. Parameswaran, relies on the Circular No. 89/7/2006-S.T., dated 8-12-2006 which clarifies with regard to certain functions and duties performed by statutory authorities that such activities performed by statutory authorities are to be treated as performed by a sovereign/public authority under the provisions of law and they cannot be considered for the purpose of service tax. The learned Counsel further submits that the clarification given by the Circular No. B.11/1/2001-TRU, dated 9-7-2001 also supports their plea. From the above judgments not only on the point of statutory obligation but also on the specific ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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