TaxTMI 
TaxTMI 
2009 (1) TMI 160
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....of the gross receipts in terms of Board's Circular No. 39/97 dated 11-6-1997. It was argued that this issue was earlier the subject matter of adjudication before the Assistant Commissioner of Central Excise. The Joint Commissioner had passed an order dated 25-9-2006. Our attention was invited to the findings of the said order to show that the Department had all the information with regard to the activities carried out by the applicants. For example, in paragraph 13, in a tabular column, the following activities have been enumerated. (i) Handling of Bentonite (ii) Handling of Clay (iii) Handling of Coal (iv) Handling of Coke (v) Handling of Containers (vi) Handling of Limestone (vii) Handling of Sulphur (viii) Handling of Wood pulp (ix) C & F charges (x) Coal transportation charges. 3.1 The period involved in the said adjudication before the Joint Commissioner is from 2001 to 2004. It was argued that even in 2001, the Department had knowledge of the various activities of the applicants. Therefore, it was urged that they could not have invoked the longer period in the two show cause notices. Hence, it was stated that the entire amount is hit by time-b....
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....this Bench in the case of Konkan Marine Agencies v. CCE, Mangalore - 2007 (8) S.T.R. 472 (Tri.-Bang.), which has been upheld by the Hon'ble High Court of Karnataka in CEA No. 12/2008 dated 13-3-2008 [2009 (13) S.T.R. 7 (Kar.)]. In these circumstances, it was urged that the entire demand is hit by time-bar. It was also stressed that the applicants, in fact, had been paying service tax on 15% of the gross receipts in terms of Board's Circular. They had also been filing the Service Tax Returns regularly. In such circumstances, the Department ought to have issued the Show Cause Notice within the normal period. However, they had invoked the extended period which is not admissible. It was further pointed out that the applicants had filed a letter dated 4-1-2005 with the Commissioner of Service Tax, Mangalore, on 5-1-2005 seeking clarification whether handling charges for export cargo is liable to service tax or not. In the said letter, the applicants stated the fact that they are licenced Custom House Agent, Stevedore, and Clearing and Forwarding Agents. In reply to the applicant's letter, the Department informed them that their services would fail under Port Services. However, the appli....
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....hennai Bench in the case of Western Agencies & Others [2008 (12) S.T.R. 739 (Tri.-Chennai) wherein the said Bench has taken a contrary view with regard to the services rendered inside the port. In fact, according to the Chennai Bench, the services would fall under similar services and in view of contrary decisions, the matter had been referred to the Larger Bench vide Misc. Order No. 365/2008 dated 26-8-2008. 4.2 As regards limitation, it was submitted as follows: (i) Under Section 73(1) of the Finance Act, demand notice for short levy should be served within one year from the relevant date. The expression 'relevant date' is defined in sub-section (6) to be the date when rules require submission of periodical returns. Rule 7 of the Service Tax Rules requires every assessee to submit half-yearly return in the prescribed form for the months covered in half-yearly return by the 25th of the month following the particular half-year (25th of April and October). (ii) First notice of demand was issued on 9th/11th April, 2007 covering a periods of 2004-2005 and 2005-2006. Since the half-yearly return for October 2005 to March 2006 was required to be filed by 25th April, 2006, the n....
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....port or export of goods. The value of the taxable service in relation to the service provided by a custom house agent to a client has been defined to constitute the gross amount charged by such agent from the client for services rendered in any manner in relation to import or export of goods. The service tax is chargeable at the rate of 5% on the value of the taxable service. 2.3 The service rendered by the custom house agent are not merely limited to the clearing of the import and export consignment. The CHA also renders the service of loading/unloading of import or export goods from/at the premises of the exporter/importer. The packing weighment; measurement of the export goods, the transportation of the export goods to the customs station or the import goods from the customs station to the importer's premises, carrying out of various statutory and other formalities such as payment of expenses on account of octroi, destuffing/pelletisation, terminal handling, fumigation, drawback/DEEC processing, survey/amendment fees, dock fees, repairing and examination charges, landing and container charges, statutory labour charges, testing fees, drug control formalities, sorting/marking/s....
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....sed by him on the main CHA. The service tax will be payable by the CHA who provides the actual service to the client and raises the bill to the client. 2.7 A CHA may have various branch offices located at different stations but all these branch offices do not raise the bills and only the main or central office will be raising the bills. In such cases, only the central office should be registered with the Deptt. The Commissioners of Central Excise may verify any such contention and allow the payment to be made by Head Office. 2.8 Sometimes, the bills raised by the CHA are not entirely paid by the client and the CHA is forced to give discounts. In such cases where the final bill raised is lower than the initial bid, it may be mentioned that the law provides for claiming of refund of excess service tax paid within six months from the date of payment of tax. If the CHA can produce evidence of having charged less service tax, he may claim refund of excess service, tax paid, if any, as per the provisions of law." 5.1. In terms of the above Circular, the applicant had been discharging Service Tax on 15% of the gross amount received from the clients. This fact is not disputed by t....
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....en taken in the Stay Order Nos. 1144 and 1145/2008 dated 24-11-2008. Moreover, we want to record that the impugned order of the Commissioner lacks clarity for the following reasons although the Special Counsel for the Revenue would insist otherwise. In para 64, the Commissioner has given a summary of his findings on the legal issue regarding Port Services. The said para is reproduced below :- "64. Before concluding, it may be necessary to summarize the findings on the legal issue regarding 'Port Services'. As per Section 65(82) of the Act, "Port Services" means any service rendered by a port or other port or any person authorized by such port or other port, in any manner, in relation to a vessel or goods. Thus, the definition has two limbs and to be a 'Port Service', it should be; (1) Any service rendered by the Port or other port, (2) Any service rendered by any person; (a) authorized by such port or other port, in any manner, (b) in relation to a vessel or goods. As per Maxwell on the Interpretation of statutes the primary rule is to give literal construction and if there is nothing to modify, alter or qualify the language which the statute contains, it must be con....