TIRUPUR CONTAINER TERMINALS PVT. LTD. Vs. C.C.E., COIMBATORE
LAWS(CE)-2015-5-41
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
Decided on May 14,2015

Tirupur Container Terminals Pvt. Ltd. Appellant
VERSUS
C.C.E., Coimbatore Respondents

JUDGEMENT

R.PERIASAMI,MEMBER (T) - (1.)The appellant is a container freight station appointed by the Commissioner of Central Excise, Coimbatore as per Ministry of Commerce Circular dated 28 -3 -1994 and they were registered under cargo handling service and discharging regular service tax on all activities undertaken in respect of cargo movement from port to CFS at Tiruppur. The Adjudicating Authority confirmed the demand of service tax of Rs. 19,13,685/ - (Rs. 17,51,903 + Rs. 1,61,782/ -) under Business Support Service in respect of transportation of export cargo from CFS to port of shipment in relation to exports and also imposed equal penalty. Ld. Advocate for the appellant submits that since the appellant is appointed as CFS all their activities are covered under cargo handling service falling under Sec. 65(23) of the Finance Act for which they have already registered and discharging service tax in respect of handling of import cargo. He further submits that Finance Act excludes handling of export cargo from the purview of cargo handling service. Therefore, all activities was exempted from service tax and not chargeable to service tax whereas the department demanded service tax on transport of export cargo under Business Support Service. He further submits that Sec. 65(104c) is not applicable in their case. He also submits that since the activity is in relation to transport of export cargo, if at all it is covered under GTA, and service tax is chargeable under reverse charge basis on the recipient. He submits that the company is a multi -national and each CFS is separate centre for internal purpose and accounted the same as transport income. The entire activity falls under cargo handling service.
(2.)On the other hand, ld. AR reiterates the findings and submits that they raised a separate invoice for transportations and another invoice for cargo handling which clearly shows that this transportation does not fall under cargo handling service and rightly classifiable under BSS. After hearing both sides, we find that appellants are approved by the Commerce Ministry as CFS at Tiruppur by Public Notice No. 8/95 dated 9 -5 -1995 as container freight terminal. Sec. 65 of Finance Act covers all cargo handling service of loading, unloading, packing and unpacking of cargo and includes cargo handling services provided for freight station. Sec. 65(23) clearly excludes handling of export cargo or passenger baggage or mere transportation of goods. The activities relating to export cargo not chargeable to service tax. Adjudicating authority has not disputed the fact that transportation charges received by the appellant is towards transportation of export cargo from the client from CFS to port of loading. In the present case amount collected towards transportation of export cargo cannot be classifiable under BSS as the appellant is the CFS operator handling of both import and export cargo. Therefore, prima facie appellants have made out a case for total waiver of pre -deposit. Accordingly, there shall be no pre -deposit and grant stay of recovery of the demand in question during pendency of appeal. Stay application is allowed.
(Dictated and pronounced in open Court)

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