TMI Blog2009 (10) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... g and transportation of bagasse to his client i.e. M/s. Sharad SSK Ltd. during the financial years 2004-05 to 2007-08 and received consideration of Rs. 2,46,533/- on which the Service tax comes to Rs. 25,147/- but failed to take registration and pay Service tax under Cargo Handling Service ; that similarly the second appellant was issued with SCN dated 17-3-2008 with same allegation as that of the first appellant but failed to take registration and pay Service tax of Rs. 44,572/-; that both the appellants were directed to show cause as to why the said Service tax amounts should not be demanded under Section 73 (1) of the Finance Act, 1994 (hereinafter referred as the Act), interest under Section 75 and penalty under Sections 76, 77 and 78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work with the sugar factory as per the work order and according to the Department s Circular No. B-1 1/1/2002-TRU, dated 1-8-2002 which clarifies that for example, if someone hires labour/labourers for loading and unloading of goods in their individual capacity, whether he would be liable for Service tax as cargo handling agency, it is clarified that such activities will not come under the purview of Service tax as a cargo handling agency ; (v) that in view of the clarification, both the appellants are not covered under the category of cargo handling agency and the circular is binding on the department; (vi) that the activities relating to bailing of bagasse, packing and unpacking, transportation within the factory premises are wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore me at 10.15 AM. For both the appeals, originally the hearing was fixed on 7-10-2009. However, as requested by Shri Joshi, a common proceeding for both the appeals has been held today. During the hearing, in addition to reiterating the submissions made in the appeal memorandums, he has stressed the following - (a) that the issue involved in the appeals have been already decided by the Commissioner (Appeals) in the case of Bharat Haribhau Salunkhe reported in 2008 (12) S.T.R. 645 (Commr. (Appeals)); (b) that in the case of the appellant Shri Mahadeo Tamanna Sargar, the Service tax was demanded and confirmed when the consideration received during the financial years 2004-05 and 2005-06 were within SSI exemption; (c) that in both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded that since no definition was available for Cargo Handling Agency , he referred the Dictionary meaning for the term Agency and accordingly he concluded that the appellants activities are falling under Cargo Handling Service . 4.1 Whereas the appellants claim that the contractor supplies the labourers to the sugar factory wherein they are engaged in bagasse bailing with the aid of machinery, storing the same in a specified place, transporting the same in a specified place and supplying the stored bagasse to the boiler as per the requirement; that the appellants further claim that the nature of the work is mere supply of manpower and not related to cargo handling services and to support this contentions, the appellant relies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the bagasse cannot be considered as cargo and it is not the intention of the legislature to bring the bagasse as cargo and charge service tax. However, as claimed by the appellant, their activities could be treated as supply of labourers which is taxable with effect from 16-6-2005 under the category of manpower recruitment agency service. The above case is squarely applicable in the instant case as the issue involved is one and the same. 4.3 In addition to the above, the Hon ble Tribunal in the case of J J Enterprises v. CCE, Raipur - 2006 (3) S.T.R. 655 (Tri. - Del.) = 2005 (186) E.L.T. 189 (Tri.-Delhi) held that the Noticee who was neither owner nor lessee of machines, their role being limited to supply of manpower, they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the bagasse, which is a residual waste of sugarcane, can never be considered as cargo. Accordingly, I hold that both the appellant s activities would not fall under Cargo Handling Service . The Assistant Commissioner, without looking into the nature of the work, has gone by the agreement/contract and concluded that the appellants activities would get covered under Cargo Handling Service . 5. In addition to the above, the consideration received by the first appellant, is within the exemption limit and without considering these basic aspects, the Assistant Commissioner has not only confirmed the Service tax, but also slapped the appellant with equal penalties under Section 78 of the Act and various other penalties under Sections 76 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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