2015 (6) TMI 545

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....the demand of service tax of Rs. 25,16,085 and imposing penalties under sections 76 and 78 of the Finance Act 1994 for the period Oct 01 to Feb 2006 against first appellant and the Order-in-Revision 05R dated 06.11.2009 against second appellant confirming demand of Rs. 26,89,239 for the same period with similar penalties. Revenue is also in Appeal in both cases for non-imposition of adequate penalty in terms of revised Section 76 and non-imposition of penalty under Section 77. As the issue is common, all appeals are taken up together. 2. The first appellant M/s. Nhava Sheva International Container Pvt Ltd. (NSICT) and second appellant M/s. JNPT are two container handling terminals both providing port services. The containers are brought ....

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....s. 3. Heard both sides. 4. The first argument of the ld counsels for the appellants is that the service provided may not be classified under 'port services' under Section 65(105) (zn) because the activity undertaken amounts to "cargo handling" service as defined in Section 65 (23). And since handling of export cargo is excluded from the definition of "cargo handling service", their activity comprising almost entirely of handling of export containers, service tax is not payable at all. He relied on the Karnataka High Court judgement in the case of Commissioner versus Konkan Marine Agencies - 2009 (13) STR 7 (KAR). Revenue has not shown any judgement of High Court to the contrary. Nevertheless we find that irrespective of the fa....

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....vice Tax (Determination of Value) Rules 2006 came into effect form 19.4.2006, that is after the period of dispute in the present case. Therefore resort cannot be had to these Rules for the determination of value. In this view of the matter the taxable value on which service tax is chargeable must be considered as the invoice raised for the service provided. 4.2 The learned AR argued strongly that this is not a case of revenue neutrality because two different entities are involved, Commissioner relied on Jay Yuhshin Ltd. 2000 (119) ELT 718. We do not agree with him. Let us for a moment see the consequence if the appellant were asked to pay service tax on the value to be charged for all 1000 containers. What would be the net effect"? The n....