P. Karthikeyan, Member (T)

1. This is an application for stay of the operation of the impugned order filed by the revenue. After hearing both sides for sometime, we take up the appeal as we find that the appeal itself can be disposed of without further hearing. Vide the impugned order, the Commissioner (Appeals) vacated the order of the original authority demanding service tax under Port Services found to have been rendered by the respondents during the period 1-7-2003 to 1-9-2006. The original authority had demanded service tax of Rs. 4,93,471 along with education cess of Rs. 6,154. He had demanded appropriate interest and had imposed penalties under various Sections of the Finance Act, 1994 ( the) including penalty equal to the service tax demanded under Section 78 of the. Vide the impugned order, the Commissioner found that the appellants were Custom House Agents (CHA) and were registered with the department as a provider of CHA services. The original authority had found that the respondent was also engaged in Cargo Handling in the port premises which was appropriately classifiable as Port Services. There is no dispute that the Cargo Handling Services involved handling of export cargo. Relying on the Boards Circular B43/1/1997-TRU, dated 6-6-1997, the Commissioner found that loading/handling of import or export goods, transferred from the premises of the exporter etc. were activities related to CHA services. He held that the Cargo Handling Services undertaken by the respondents were not on the strength of an authorization issued by the Port Trust under Section 42(3) of the Major Port Trusts Act, 1963. Therefore, the demand of service tax classifying the cargo handling undertaken by the CHA at the port premises as port services and the demand of service tax was not sustainable.

2. We have heard both sides. We find that the Commissioner (Appeals) correctly held that cargo handling in relation to export goods undertaken by the respondent CHA in the port premises cannot be subjected to tax classifying the same as "Port Services". The respondent discharges tax liability on these activities under the category of CHA services. We also find that the impugned order is consistent with the decision of this Tribunal in the case of Konkan Marine Agencies v. CCE : [2008] 12 STT 82 (CESTAT - Bang.) which has since been upheld by the Honble Karnataka High Court. In the circumstances, we find that the appeal filed by the revenue against the impugned order is devoid of merit. We reject the same. The stay application also gets disposed of.