THIRD MEMBER ON REFERENCE : SHRI B.S.V. MURTHY, MEMBER (T) PORT OFFICER, GUJARAT MARITIME BOARD Vs. COMMR. OF C. EX., BHAVNAGAR

JUDGEMENT

(1.) This is an appeal filed by M/s. Gujarat Maritime Board, Veraval against the demand of service tax of Rs. 2.62 crores and imposition of an equal penalty. The contention of the appellant is that the provisions of service tax have been misconstrued and wrongly applied as also the constituents of revenue waterfront royalty and way leave facility compensation have been wrongly sought to be included in value of taxable port service. Further, the extended period of five years has been wrongly invoked. Hence, the appellant contends that the service tax/penalty/interest demanded are not leviable at all and this is a fit case for exercising discretion under Section 80 for complete waiver of all items of demand raised.

(2.) IT has been contended by the appellant that they were under the belief that they were not covered under taxable service in any case upto the period sought to i.e. covered i.e. 31 -3 -2009, and appellant/service provider collected service tax at appropriate rate on this gross amount charged. In view of the said factual position and the total value of the taxable service was appropriately computed on which proper Service Tax was not only collected but also paid as per applicable rules. Hence, neither there was any non disclosure nor there was any suppression of facts, as alleged.

(3.) PER contra, Shri S.K. Mall, learned A.R. inter alia brought to our notice the Larger Bench decision in the case of Western Agencies Pvt. Ltd. v. CCE, Chennai reported in 2011 -TIOL -538 -CESTAT -MAD -LB = 2011 (22) S.T.R. 305 (Tri. -LB) which reads as follows :