TaxTMI 
TaxTMI 
2008 (5) TMI 44
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the demand of Service Tax and also imposed penalties under the provisions of Sec. 77 and 78 of the Finance Act, 1994. The relevant facts that arise for consideration are that the appellants herein are holder of Central Excise Registration No. AAAC4464BXM001 for the manufacture of various excisable goods and in order to have good logistical support in respect of inward and outward movement of the goods, the appellants had their own jetty' facilities, barges, floating cranes and tugging facilities. The appellant was using these facilities for transporting, loading, unloading and movement of goods at jetty. A show cause notice dated 8.6.06 was issued to the appellant for the recovery of Service Tax under the category of port services for the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that in view of this they would not fall under the category of service providers of "port services". It is also his submission that when they applied for the construction of jetty, the Chief Port Officer of Maharashtra had clearly given them the permission, subject to the conditions that the jetty and infrastructure facilities will have to be made available to the Chief Port Officer, when not in use by appellants. He also draws our attention to the lease deed entered by the appellant with the Maharashtra Maritime Board in respect of water front and seabed for the construction of captive jetty. It is his submission that the clauses in the said lease deed will clearly indicate that as and when it is required these facilities will be made avai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ned in Sec. 65 (82) of the Finance Act, 1994. It is his submission that the main aspect to be looked into in this case is that the definition of the "port services" includes the words "in any manner in relation to a vessel or goods" are dependent and interconnected with each other. He reiterates the findings of the adjudicating authority. 4. We have considered the submissions made at length and perused the records. Office of the Chief Ports Officer, Maharashtra State vide his letter dated 15.5.90 had accepted in principle the construction of jetty at Revdanda port by the appellant on various terms and conditions and the final permission was granted by the Government of India. One of the terms and conditions was as under: "3. Jetty and....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cargo related charges will be paid to the Maharashtra Maritime Board. We find from the records that no such charges are paid by any one to the Maharashtra Maritime Board, in order to indicate that the jetty which has been constructed by the appellant was used for handling out of cargo or any other similar goods, by other person than the appellant. 5. It is undisputed in this case that income which is sought to be taxed under the category of "port services" was the rental income received by the appellant on hiring out of the barges, floating cranes and tugging facilities. We find that in the case of Velji P. & Sons (Agencies) P. Ltd. (supra), the issue involved was also hiring of barges, cranes, forklifts and since the same relate to goo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cence, but not all licences are authorizations. Hence, the licences is sued by Ports to various agencies (under Sec. 123 of MPTA) should not be confused with the authorization (may be by way of licence) issued under Section 42 of MPTA". The difference between authorization under Section 42 of MPTA and a licence issued under Sec. 123 is clearly understood if the functioning of private container terminals (for e.g. P&O) terminal in Nhava Sheva in Mumbai, Visakha Container Terminal at Visakhapatnam etc.) operating in various major ports and some of the berths operated by private persons on BOT basis, is examined. In all these cases where private parties are operating container terminals of berths, the functioning is independent of the ports wh....