2010 (9) TMI 310

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r any request of theirs for adjournment. After examining the records, we have found enough reasons to dispose of these cases finally at this stage. Accordingly, after hearing the learned JCDR, we proceed to deal with the appeals. 2. In adjudication of a show-cause notice, the original authority had demanded Service Tax of Rs. 41,906/- from CIAL on the demurrage charges collected by the company from various exporters whose export cargo was allowed to be stored and warehoused in ClAL's premises during the material period. The demand was raised under the head, "Storage and Warehousing" services defined under Clause (105) of Section 65 of the Finance Act, 1994 read with the definition of "Storage and Warehousing" given under Clause (102....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e the appellate authority. The learned Commissioner (Appeals) also noted a case law cited by the assessee vide Karnataka State Beverages Corporation v. Commissioner of Service Tax, Bangalore [2006 (4) S.T.R.. 469 (Tri.-Bangalore)], but did not properly consider the same. In the result, the case came to be remanded once again to the original authority vide Order-in-Appeal dated19-8-2008, which is presently under challenge in appeal No. S.T./562/2008. 4. After a perusal of the relevant provisions of law, we find that, in so far as storage of agricultural produce is concerned, Service Tax is not leviable on any demurrage charges collected by the warehousing company inasmuch as the definition of "storage and warehousing" under Clause (1....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

..... The Commissioner (Appeals) has no power of remand as held by the Hon'ble Supreme Court in MIL India Ltd. v. Commissioner [2007 (210) E.L.T. 188 (S.C.)]. For better clarity, we reproduce below the relevant observations of theApex Court: "In fact, the power of remand by the Commissioner (Appeals) has been taken away by amending Section 35A with effect from11-5-2001under the Finance Bill, 2001. Under the Notes to clause 122 of the said Bill it is stated that clause 122 seeks to amend Section 35A so as to withdraw the powers of the Commissioner (Appeals) to remand matters back to the adjudicating authority for fresh consideration. Therefore, the Commissioner (Appeals) continues to exercise the powers of the adjudicating authority in the ma....