[2014] 36 STR 569 (Tri. – Ahmd) Shreeji Shipping vs. CCE&ST, Rajkot

Facts:
The appellant provided stevedoring services (loading/ unloading of export cargo) and lighterage services (sea transportation from the location where the mother vessel is anchored till the jetty an vice versa) at minor ports in Gujarat and not paid service tax under port services for the period prior to 1st July, 2010. The revenue demanded service tax u/s. 65(105)(zzl) considering the appellant’s service as taxable port services and the appellant challenged the demand on the ground that the definition required that the service provider is to be authorised by the port and this being absent in its case, no service tax is leviable. The appellant also contended that only w. e.f. 1st July, 2010 when the definition of port service was amended, any service provided within the port can be considered as “port services” and this cannot be the ground to levy service tax for the period prior to 1st July, 2010. The Commissioner (appeals) confirmed the service tax demanded in the SCNs.

Held:
The Tribunal relying on the Apex Court’s decision on Aphali Pharmaceuticals vs. State of Maharashtra reported at 1989 (44) ELT 613 held that the expression “authorised by the port” can have no other meaning than what has been given to it under the laws governing ports in India and such an interpretation is consistent with the scheme of the Finance Act, which has borrowed the scope and ambit of several services with respect to the cognate legislation governing such service. The appellant provided documentary evidence that other party was authorised under the Gujarat Maritime Act, 1981 and no such authorisation is given to the appellant and in absence of authorisation the appellant is not authorised by the port. The Revenue had relied on the Apex Court decision in the case of Onkarlal Nandlal vs. State of Rajasthan – AIR 1986 SC 214 and submitted that only the definition of ‘port’ is to be referred in Major Port Trusts Act and no other provision is to be applied. The Tribunal held that the said judgment is not applicable as facts of the said case are different as in the said case an exception to the section was sought to be read and therefore was negated by the Supreme Court. Further in response to the respondent’s reliance on the case of Western Agencies Pvt. Ltd. & Ors. vs. CCE reported in 2011 (25) STR 305, the Tribunal relying on Sir Silk Ltd. vs. Textile Committee & Ors – AIR 1987 SC 317 held that the principle of pari material statute can be applied and therefore levy of service tax on port services is with reference to services provided by a major port/minor port or any person authorised by them and the persons covered under the Finance Act, 1994 are pari material. The Tribunal also held that no cognisance was taken of the amendment made to the definition of port service wherein any service provided within the port is treated as “port services” which means that the person providing the services within the port may not be an authorised person by the port. The Tribunal in relation to the invocation of extended period relied on the Apex Court’s decision in the case of Jayprakash Industries Ltd. vs. Commissioner 2002 (146) ELT 381 (SC) and held that the dispute being of interpretation and different views taken at different times and further as substantial portion of the demand is time barred by limitation, extended period cannot be invoked and in view of the above judicial pronouncements the impugned order was set aside.