BEENA PRADEEP Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) The appellant challenged adjudication order issued by the 2nd respondent determining service tax liability on palletizing as "packaging activity" falling under Section 65(76b) of Finance Act, 1994 in writ proceedings on the ground that order issued is without jurisdiction. The learned Single Judge however following the decision of the Honourable Supreme Court in Union of India v. Zaicon Electronics,2010 255 ELT 490, dismissed the WP(C) for the reason that adjudication order on facts and law has to be contested in statutory appeal and not in writ proceedings. It is against this judgment, this Writ Appeal is filed contending that there is no controversy on facts, and even on the admitted facts the adjudication is without jurisdiction.

(2.) We have heard Adv. Shri V.B. Jinnah appearing along with Adv. Smt. S. Chithra and learned Senior Standing Counsel Shri Thomas Mathew Nellimoottil appearing for the respondents.

(3.) The appellant is engaged in palletizing of cargo for export and the establishment is near the Port in Willington Island, wherefrom shipments take place to foreign countries. The Service Tax Department conducted search operations in appellant's premises and recovered the invoices, which revealed that the appellant is engaged in palletizing of goods, which according to the Department, amounts to "packaging activity" as defined under Section 65(76b) of the Finance Act, 1994, which attracts service tax under Section 65(105)(zzzf) of the Act. The appellant objected the proposal for assessment of duty on the ground that the service is not "packaging activity" covered by sub-section (76b) but is "cargo handing" within the meaning of Section 65(23) but exempt from service tax under sub-clause (b) thereto as the said service is rendered in relation to export cargo. The only question therefore to be considered is whether the palletizing of export cargo amounts to "cargo handling service" within the meaning of Section 65(23) and if so, by virtue of the exemption available under sub-clause (b), the levy and demand of service tax is not sustainable The contention raised by the learned Senior Standing Counsel for the respondents is that the appellant is engaged only in "packaging activity" as defined under Section 65(76b), and so much so the service rendered even in relation to export cargo is taxable under Section 65(105)(zzzf) of the Act. Learned Standing Counsel also resisted the maintainability of the Writ Petition for the reason that mixed questions of law and facts arise in adjudication, which could be reversed only in appeal by a statutory authority, who has to appraise findings on facts rendered by the adjudicating authority, apply the law and decide the appeal.