TaxTMI 
TaxTMI 
2008 (10) TMI 131
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....d from 2000-01 to 2003-04. (ii) An amount of Rs. 5,89,439 under 'Storage & Warehousing Services' for the period from 2000-0 1 to 2003-04. (iii) An amount of Rs. 1,58,742 under 'Cargo Handling Services' for the period from 16-8-2002 to 2003-04. (iv) An amount of Rs. 1,41,642 under 'Business Auxiliary Services' for the period from 1-7-2003 to 2003-04. (v) Total Service Tax demand of Rs. 20,37,465. 4.1 Further penalties have been imposed in the following manner: (i) Rs. 200 per day under section 76 of the Finance Act, 1944. (ii) Rs. 1,000 under section 77 of the Finance Act, 1944. (iii) Rs. 32,00,000 under section 78 of the Finance Act, 1944. 4.2 The period covered is from 2000-01 to 2003-04. 5. The appellants are engaged in the business of execution of shipments of imports and exports by sea and air. They are paying Service Tax under the taxable category of 'Custom House Agent' and 'Storage and Warehousing'. On the basis of the audit, the department proceeded against the appellants on the ground that they had not paid Service Tax under the category of 'Custom House Agents'; 'Storage and Warehousing Serv....
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....ouse Agent' means a person licensed, temporarily or otherwise, under the regulations made under sub-section (2) of section 146 of Customs Act, 1962. The department has confirmed the demand of Service Tax of Rs. 11,47,647 on Sea Import Console Handling Charges, CC fees and DO fees. It was submitted that the Charge Collect Fee (CCF) varies from 0-5 per cent of the freight amount. In case the freight charge is not pre-paid, the appellant collects freight from the consignees in India as there is no option available for the customer to make the payment towards freight in foreign currency directly to the oversea associate. It has to be routed through appellants only. In consideration of this work, the appellant collects a fee called 'Charge Collect Fee' while raising an invoice on the consignee. The charge is related to freight and the main service in the instant case is only transportation, which was not taxable under the then provisions of Service Tax. The 'Charge Collect Fee' is not related to any taxable service. 6.2 Further, it was urged that the Delivery Order Fee (DO Fee) is collected by the appellants from the importers for handling the documents to the con....
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....ge and Warehousing Charges'. Further, it was stated that after 16-8-2002, the appellants had paid the Service Tax, therefore, this could not have been confirmed. Prior to 16-8-2002, it was stated that by mistake the appellants got registered under the category of 'Storage and Warehousing Services'. Mere registration under a particular category of taxable service will not make the appellants a service provider. The following decisions were relied on: (a) Mahavir Generics v. CCE 2004 (170) ELT 78/[2007] 6 STT 523 (Delhi-CESTAT). (b) Metlex India v. CCE 2004 (165) ELT 129 (SC). (c) CCE v. Siemens Ltd. [2006] 4 STT 54 (New Delhi-CESTAT). (d) Power Best Electricals Ltd. v. CCE [2008] 14 STT 88 (Bang.-CESTAT). (e) Diebold Systems (P.) Ltd v. CST [2008] 12 STT 346 (Chennai-CESTAT). 6.9 Further, a demand of Rs. 1,58,742 has been made under the category of 'Cargo Handling Services'. It was submitted that the amount demanded is based on the fact that the balance sheet of the appellants contained an entry of transport and handling. Our attention was invited to the invoices and ledgers, especially to sample invoice in the paper-book and it was submitted th....
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.... service provider to an-exporter of service. The CBEC Circular No. 56/5/2003, dated 25-4-2003 describing Service Tax as a destination based consumption tax, clarifies that services of such secondary service provider are not taxable. Therefore, there was a prayer to set aside the demand of Service Tax. 6.12 It was urged that the appellants had been filing Service Tax Returns and paying the tax on the services undertaken by them. The very fact that substantial part of the present demand does not survive indicates that there was no intention to evade payment of Service Tax. The demand proceeds on a comparison of the ST-3 Returns which could have been done even during the earlier period. 7. The learned Departmental Representative reiterated the impugned order and requested the Bench to confirm the same, as it is legal and proper. 8. We have carefully gone through the records of the case. It is seen that demands have been made under the following categories of taxable services: (i) Custom House Agent (CHA) Service (ii) Storage and Warehousing Services (iii) Cargo Handling Services (iv) Business Auxiliary Services. The total demand comes to Rs. 20,37,465. Penaltie....
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....selves accept that with effect from 16-8-2002, they would be liable for Service Tax. Therefore, any tax demanded prior to that period cannot be sustained. 8.3 As regards 'Cargo Handling Services', one has to go by the definition of 'cargo handling' which involves various activities. 'Cargo Handling Services' is defined in the following manner: "Cargo Handling Services as defined under section 65(23) of the Finance Act, 1994 "Cargo handling service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight but does not include handling of export cargo or passenger baggage or mere transportation of goods.' On going through the definition of 'Cargo Handling Services', it is seen that the appellants do not undertake all such activities, therefore, the amount collected for mere transportation cannot be called as an amount collected for cargo handling. Hence, the demand u....