2023 (9) TMI 921 - AT - Service Tax

Barge and vessel repair work in port limits: not 'port service' without port authorisation; service tax demand, credit denial set aside.

Service tax liability turned on whether barge/vessel repair within port limits constituted 'port service' under the Finance Act, requiring the service to ... Classification of services - port services or not - barge activity carried out by the Appellant - wrongful availment of Cenvat Credit by the Appellant or otherwise - HELD THAT:- It is found that taxable services under the net of “Port Service” means any service rendered by a port or any person authorized by such port. As such, the services which can be taxed under the said category have to be either services rendered by port itself or any person authorized by such port - Admittedly, repair of the vessel is not being done by the port. The lower authority has held the appellant to be a person authorized by such port to undertake the activity of repairing of vessel. The decision cited by the revenue in the matter of CAIRN ENERGY INDIA PVT. LTD. VERSUS CCE & C, VISAKHAPATNAM-II (VICE-VERSA) [2019 (3) TMI 815 - CESTAT HYDERABAD] is not applicable in the present matter. In the said case the assessee rendered pilotage service in a minor port based on the authorization granted by the Port Authority. Here Appellant was not authorized by the port for rendering the activity on behalf of port. Therefore, the respective services in question rendered during the relevant period by the present appellant within the port area cannot be charged service tax under the category of ‘port service’. Availment of Cenvat credit on inputs/capital goods by the appellant - HELD THAT:- On close reading of “input” definition under Rule 2(k) of the Rules as above, it is clear that Clause (i) covers all goods, except as specified, used in or in relation to the manufacture of final product. On the other hand, Clause (ii) in Rule 2(k) covers all goods except specified therein, used for providing any output service. In short, Clauses (i) and (ii) are applicable for “manufacturer” and “output service provider” respectively. The present case relates to output service provider. There is no dispute that the appellants herein are not manufacturer and covered under Clause (ii) of “input” definition. The words “all goods”, if read with “used for providing any outpu service” in Clause (ii) of Rule 2(k) of Rules, 2004, make it clear that any goods other than specified in the said clause, used for providing any output service, would be treated as “input” and covered under the said definition - The present case relates to output service provider. The inputs on which appellant availed credit was used for the purpose of repairs of barges and vessles which in turn were used for providing output service of appellant. The appellant is entitled for Cenvat credit on such inputs utilized for repairing and manufacture of barges. Extended period of limitation - HELD THAT:- The issue involve is pure interpretation of taxability of the service. On the very same issue in the appellant’s own group company’s matter in M/S. SHREEJI SHIPPING. VERSUS CCE. & ST. - RAJKOT. [2014 (4) TMI 445 - CESTAT AHMEDABAD] similar demand was set aside by Tribunal. Therefore, in the present case the period is subsequent to the earlier one and in the light of Apex Court judgment in the case of NIZAM SUGAR FACTORY VERSUS COLLECTOR OF CENTRAL EXCISE, AP [2006 (4) TMI 127 - SUPREME COURT] any subsequent show cause notice on the same issue, extended period cannot be invoked - in the present case also the demand for the extended period is not sustainable also on the ground of time bar. Appeal allowed. Issues Involved:1. Classification of services under 'Port Services.'2. Wrong availment of Cenvat credit.3. Invocation of extended period for demand.Summary:1. Classification of Services under 'Port Services':The primary issue was whether the barge activities carried out by the appellant were taxable under port services. The Tribunal examined the definition of 'Port Service' under Section 65(82) of the Finance Act, 1994, before and after the amendment made effective from 1-7-2010. It was noted that prior to the amendment, the focus was on services rendered by a port or any person authorized by such port. Post-amendment, the emphasis shifted to any service rendered within a port. The Tribunal referenced the case of Shreeji Shipping v. CCE, Rajkot, where it was held that services rendered within the port would be taxed under 'port services' only from 1-7-2010. The Tribunal concluded that the appellant's services did not fall under 'port services' for the period before the amendment, as there was no authorization from the port.2. Wrong Availment of Cenvat Credit:The Tribunal addressed the issue of whether the appellant wrongly availed Cenvat credit on various goods used for repairing barges and vessels. It was argued that these goods were inputs necessary for providing output services. The Tribunal referred to the definition of 'input' under Rule 2(k) of the Cenvat Credit Rules, 2004, which includes all goods used for providing any output service. The Tribunal concluded that the appellant was entitled to Cenvat credit on such inputs utilized for repairing and manufacturing barges, as these were necessary for providing the output service.3. Invocation of Extended Period for Demand:The Tribunal considered whether the extended period for demand was justifiable. It was noted that the issue involved was one of interpretation and had been previously addressed in the appellant's group company's matter in Shreeji Shipping, where a similar demand was set aside. The Tribunal referenced the Apex Court's judgment in Nizam Sugar Factory, which held that for subsequent show cause notices on the same issue, the extended period cannot be invoked. Consequently, the Tribunal found the demand for the extended period to be unsustainable on the grounds of time bar.Conclusion:The Tribunal set aside the impugned order and allowed the appeal with consequential relief, concluding that the services rendered by the appellant did not fall under 'port services' for the relevant period, the appellant was entitled to Cenvat credit, and the extended period for demand was not applicable.