TaxTMI 
TaxTMI 
2023 (6) TMI 307
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....cherry (herein after referred to as 'Port Department') intended to develop a port at Karaikal in the Union Territory of Puducherry in the BOT format with private investments. They entered into an agreement, named 'Concession Agreement For Development Of Karaikal Port Project', with M/s. Marg Constructions Ltd (MCL). Granting them the rights to develop / operate / maintain the Port including project facilities on a BOT basis. Subsequently, MCL transferred and assigned the project to their wholly owned subsidiary, namely M/s. Karaikal Port Pvt. Ltd. (KPPL) who would be the concessionaire for the Port project. KPPL were given the freedom for the levy, fixing and revising tariffs for various port services on the premises. In consideration for t....
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....vice Tax Department for rendering Port services. The impugned order has held that Government of Puducherry has outsourced the activity of designing, financing, building, owning, maintaining, operating and transferring a port at Karaikal and has classified the activity under infrastructure support service in relation to business or commerce. He submitted that the service is performed by KPPL and not by the appellant. The fees that is received by the Appellant is not in return for provision of any infrastructural service. Rather, it is merely for leasing of vacant port land. If there is any provision of infrastructural support or service, the same flows from Karaikal Port to the Appellant. The Appellant submits that the aforesaid activity of ....
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.... to business or commerce as defined under section 65(104C) of Finance Act, 1994 and is taxable accordingly. She further stated that the Port Department which is a registered service provider who were following the self-assessment pattern and have supressed the fact of receipt of the above taxable value in their statutory periodical returns and the matter was uncovered only after the department investigated the matter based on intelligence. Hence the extended time has been rightly invoked. She prayed that the appeal be rejected. 4. We have examined the matter. It would be helpful to examine the concerned sections of the Act governing the dispute as cited in the impugned order. Sections 65(105), 65(105)(zzzq), 65(104C) of the Finance Act, 19....
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....es of Business or Commerce'. b) whether the notice is time barred. 6. We find that to bring the activity covered by the 'Concession Agreement For Development Of Karaikal Port Project', between the Port Department and KPPL under sec. 65(105)(zzzq) of the Finance Act, 1994, the "taxable service" provided or to be provided, to KPPL by the Port Department, should be in relation to support services of business or commerce, in any manner. Revenue is of the opinion that the entire activities carried out under the concession agreement are in the nature of composite services, which consists of a combination of different taxable service and therefore it should be classified as if it consisted of a service which gives the essential character in acc....
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.... accordingly of the view that the impugned order has erred in classifying the activity of the BOT contract under sec. 65(105)(zzzq) of the Finance Act, 1994 and that the levy must fail. 6.1 The Appellant has relied upon the judgment in CCE, Goa vs Mormugao Port Trust 2016 (41) S.T.R. 127 (Tri.-Mumbai). The facts of the case are that M/s Mormugao Port Trust is rendering Port Services and is duly registered for this purpose with the service tax authorities. The Assessee had entered into an agreement with M/s. South West Port Ltd., Mormugao, (SWPL) under which it had leased out/rented out pieces or parcels of land which were situated in the operational area of the harbour to SWPL on which the latter had constructed a jetty which was used for ....