Custom, Excise & Service Tax Tribunal
South India Corporation Ltd vs Commissioner Of Central Excise ... on 26 June, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Final Order . 21043 / 2014 Application(s) Involved: ST/Stay/26432/2013 in ST/26106/2013-DB Appeal(s) Involved: ST/26106/2013-DB [Arising out of 124-2012 dated 27/11/2012 passed by Commissioner of Central Excise , VISAKHAPATNAM-I ] South India Corporation Ltd 14-1-54, Nauroji Road, Maharanipeta, VISAKHAPATNAM - 530002 AP Appellant(s) Versus Commissioner of Central Excise ,Customs and Service Tax VISAKHAPATNAM-I NULL CENTRAL EXCISE BUILDING PORT AREA VISAKHAPATNAM - 530035 ANDHRA PRADESH Respondent(s)
Appearance:
Shri M.S. Nagaraja and Shri V. RAVINDRANATH , Advocates, 306, VISHNU APARTMENTS, DASPALLA HILLS, VISAKHAPATNAM - 530003 ANDHRA PRADESH For the Appellant Shri S. Teli, Deputy Commissioner(AR) For the Respondent CORAM:
HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER HON'BLE SHRI S.K. MOHANTY, JUDICIAL MEMBER Date of Hearing: 26/06/2014 Date of Decision: 26/06/2014 Order Per : B.S.V.MURTHY Both sides agree that the matter is required to be remanded at this stage itself in view of the fact that the learned Commissioner in the impugned order came to the conclusion that appellant is liable to pay service tax under the category of cargo handling services for shortage cover in paragraph 19 which is reproduced below:-
19. I have perused a sample contract placed on file. This is a contract issued to M/s. South India Corporation by M/s. TNEB vide Lr. No.Dir/Coal/E2/A1/Coal-28/P.O.49/D.37/2001 dt. 02/02/2001. As per the contract the shortage cover rate shall be firm and will be limited as indicated in each of the schedule. In the Schedule II Rates for movement through Visakhapatnam Port the amount to be paid is split into 12 categories namely (a) Average Railway Freight from FOR Collieries to Vizag Port (b) Wagon Haulage charges (c) Wharfage (d) Crane hire Charges (e) Plot Hire Charges (f) Fire Fighting Charges [actual if levied by VPT] (g) Track Maintenance by Port Railway [actual if levied by VPT] (h) Intraport Transportation Charges (i) Wagon Unloading Charges (j) Hooking on shore charges (k) Stevedoring charges (l) Shortage cover. It is the contention of the appellant that the shortage cover of Rs.4/- per MT is not liable for service tax. This contention does not appear to be correct because in terms of the Finance Act, Cargo Handling means, loading, unloading, packing or unpacking of cargo etc. for all modes of transport. When loading and unloading are integral parts of cargo handling services and when the gross receipt includes the said charges, there is no question of arguing that the same is not liable to Service Tax under the category of Cargo Handling Services. Hence, I hold that the assessees are liable to pay service tax on the amounts received towards shortage cover.
2. However, in the order portion, he confirmed the demand for service tax in respect of the amount received as shortage cover under Port Services. In view of the discrepancy pointed out, we consider it appropriate that the matter should be remanded at this stage itself to the original adjudicating authority for fresh decision. The original adjudicating authority is directed to ensure that in the second round of adjudication, the matter should be examined in detail as regards classification of service, nature of the amount received, claims made by the appellants regarding nature of the amount, the liability of the amount in terms of statute, definition and understanding of the parties for service tax etc. Needless to say that the appellant shall be given reasonable opportunity to present their case before the matter is finally decided.
(Operative portion of the order pronounced in open court) S.K. MOHANTY JUDICIAL MEMBER B.S.V.MURTHY TECHNICAL MEMBER Raja.
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