Loading and unloading of Goods at Port are classifiable under Cargo Handling Service: CESTAT [Read Order]

The Ahmedabad bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that Loading and unloading of Goods at a Port are classifiable under Cargo Handling Service since the appellant has been paying service tax on the same service under cargo handling service and discharged the service tax.

A V B Handling, the appellant is engaged in providing the cargo handling service at Kandla Port to its various clients. The service includes loading, and unloading of goods at the port, cutting of bags, spreading of Zola, and cleaning of jetty.

The appellant is paying service tax under the category of cargo handling services on 75% of the value of the service. The department viewed that the appellant had deputed his labour for the aforesaid work, hence, the service is classifiable under Manpower Recruitment or Supply Agency Service under Section 65(105). The demand for differential service tax amounting to Rs. 14,92,988/-  was raised. 

Shri Abhishek Doshi, Chartered Accountant appearing on behalf of the appellant submitted that the job performed by the appellant is loading, and unloading of goods at port, cutting of bags, spreading of zola, cleaning of jetty etc. at Kandla port to various clients. The said service is correctly classifiable under Cargo Handling Service. He further submitted that merely because the appellant had deputed some manpower for performing his job to the client, the department had wrongly interpreted that the appellant had provided the Manpower Recruitment or Supply Agency Service.

Shri Ajay Kumar Samota, Superintendent (AR) appearing on behalf of the revenue reiterated the finding of the impugned order. 

It was observed that the appellant have not provided the Manpower Recruitment or Supply Agency Service but they only performed the job as required by their client. The supervision and control of the manpower deputed for the aforesaid job was with the appellant and thus the client was not concerned about the number of manpower, type of manpower, Man hours etc.  Therefore, the nature of work is cargo handling service provided at the port and not Manpower Recruitment or Supply Agency Service.

After due process of law, the Commissioner found that the appellants had rendered taxable services classifiable under the category “Manpower recruitment or supply agency” of clause 68 of Section 65 of the Act during the material period without following the statutory formalities including payment of service tax. Hence the demand and penalties.

A two-member bench comprising Mr Ramesh Nair, Member (Judicial) and Mr C L Mahar, Member (Technical) observed that the appellant’s service is correctly classifiable under cargo handling service as claimed by the appellant and not under manpower recruitment or supply agency service as alleged by the Revenue. 

The details of the nature of service, payment of service tax etc. are declared in their ST-3 return. Nothing prevents the department from taking action against the appellant based on the details provided in ST-3 returns, therefore, there is absolutely no suppression of fact on the part of the appellant. Hence, the demand is also hit by limitations for an extended period.

Further held that the demand for differential service tax confirmed by the lower authorities is not sustainable. The CESTAT set aside the impugned order and allowed the appeal.

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