2019 (3) TMI 815 - AT - Service Tax

Tribunal upholds service tax on pilotage charges under 'Port Services', directs re-computation, confirms jurisdiction, justifies extended limitation period.

Cairn Energy India Pvt. Ltd. Versus CCE & C, Visakhapatnam-II (Vice-Versa)

The Tribunal upheld the demand for service tax on pilotage charges under 'Port Services', directed re-computation of the tax and penalties, confirmed the ... Levy of service tax - pilotage charges - whether the appellant is liable to pay service tax on Port Service as per Section 65(105)(zzl) in respect of the services rendered by them in Ravva Port with permission of the Port Authority? - Held that:- The amount received by them under the head “pilotage revenue” was in the nature of reimbursement of costs and not in the nature of consideration for any service. Even if it was treated as services rendered by them upto 18.04.2006, the value of taxable services for the purpose of charging service tax was a cost charged by them for providing taxable service. The amounts which they received as reimbursement were not chargeable to service tax. Whether the appellant has received authorisation from the Port authorities and if so whether it can be considered as a valid authorisation? - Held that:- A plain reading of the above letter shows that the appellant has been authorised to undertake various activities including pilotage and for this purpose, they need a licenced pilot. Therefore, the requirement under section 65(105)(zzl) that the services must have been rendered at Port or by a person authorised by the Port, is fulfilled. In this case is appellant, authorised by the Port has rendered the services. Thus, the appellant was fully liable to pay service tax on the pilotage charges which they received from their customers under the head “Port Services”, under section 65(105)(zzl) of Finance Act, 1994 - the demand of service tax on port services on the pilotage charges received by the appellant are upheld and any amounts which they must have already paid will be adjusted against the same, but the amounts need to be recomputed reckoning the amounts they received as cum tax amounts. Time limitation - Held that:- The appellant has definitely violated the conditions of the Act and Rules and has not paid the service tax. The benefit of not paying the service tax is evident. Therefore there is no force in the argument that they have not violated any provisions of Act with an intent to evade payment of service tax. Jurisdiction - Held that:- The services were rendered within the jurisdiction of the adjudicating authority and therefore the order was correctly issued by him. Wherever they have paid the service tax on these services, he has already taken them into account while computing the tax liability. Demand of interest u/s 75 - Held that:- Interest under section 75 on the recomputing amount of service tax also needs to be paid. Penalty - Held that:- The appellant has not paid service tax in violation of the Act and Rules with an intention to evade - penalty upheld. Appeal allowed by way of remand. Issues Involved:1. Liability of the appellant to pay service tax on pilotage charges under 'Port Services'.2. Correctness of the penalty imposed by the adjudicating authority under section 78 of the Finance Act, 1994.3. Jurisdiction of the Commissioner of Central Excise, Visakhapatnam to issue the demand.4. Applicability of extended period of limitation for demanding service tax.5. Inclusion of reimbursement costs in the taxable value.6. Calculation of service tax demand and interest.Issue-wise Detailed Analysis:1. Liability to Pay Service Tax on Pilotage Charges:The appellant challenged the levy of service tax on pilotage charges received under 'Port Services'. The Tribunal noted that 'Port Services' under Section 65(105)(zzl) of the Finance Act, 1994, includes services provided by a port or any person authorized by the port in relation to a vessel or goods. The appellant argued that they were not a port authority nor authorized by one. However, the Tribunal found that the appellant had authorization from the Kakinada Port Authority to carry out berthing and mooring operations, as evidenced by a letter from the Port Officer. The Tribunal concluded that pilotage, a fundamental port activity, was performed by the appellant under this authorization, making them liable for service tax on the pilotage charges received.2. Correctness of Penalty Under Section 78:The adjudicating authority imposed a penalty under section 78 of the Finance Act, 1994, which the appellant contested. The Tribunal upheld the penalty, noting that the appellant violated the Act and Rules by not paying the service tax, thus benefiting from non-payment. The Tribunal found no grounds to set aside the penalties but directed that the penalties be re-computed based on the re-calculated service tax amount.3. Jurisdiction of Commissioner of Central Excise, Visakhapatnam:The appellant contended that the Commissioner of Central Excise, Visakhapatnam, lacked jurisdiction to issue the demand as the invoices were raised from their Gurgaon office. The Tribunal rejected this argument, stating that the services were rendered within the jurisdiction of the adjudicating authority, thus validating the order.4. Applicability of Extended Period of Limitation:The appellant argued that the demand was barred by limitation, as there was no evidence of fraud, collusion, or willful misstatement. The Tribunal found that the appellant violated provisions of the Act with an intent to evade payment of service tax, justifying the invocation of the extended period of limitation under the proviso to Section 73(1) of the Finance Act, 1994.5. Inclusion of Reimbursement Costs:The appellant claimed that amounts received as pilotage revenue were reimbursements and not consideration for services. The Tribunal held that the appellant was the service provider and received charges for pilotage, which were not merely reimbursements. The Tribunal emphasized that outsourcing some activities does not extinguish the appellant's tax liability.6. Calculation of Service Tax Demand and Interest:The Tribunal directed that the service tax demand be re-computed, considering the amounts received as cum tax value. Interest under section 75 of the Finance Act, 1994, was also deemed payable on the re-computed service tax amount. The Tribunal ordered adjustments for any amounts already paid by the appellant.Conclusion:The Tribunal upheld the demand for service tax on pilotage charges under 'Port Services', directed re-computation of the tax and penalties, confirmed the jurisdiction of the adjudicating authority, and justified the use of the extended period of limitation. The appeals were disposed of with these directions.