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2011 (12) TMI 205 - AT - Service TaxCargo handling services - section 65(105)(zr) of Finance Act,1994 – assessee engaged in hiring out payloaders to SECL and for loading of coal into the wagons at railway siding – argument of the Appellants that they were in the business of just hiring out pay loaders - Held that:- Work order clearly shows that assessee’s work was to load coal into the railway wagons. The compensation given to them was also based on per ton of coal loaded and not based on number of pay loaders given. At the stage of loading of cargo into railway wagons there can be no doubt that the goods are cargo. Thus not able to agree with the contention that if any mechanized means is employed there is no handling of cargo. Therefore, the work done by the appellant was cargo handling. See Gajanand Agarwal v. CCE&C [2008 (6) TMI 163 - CESTAT KOLKATA] Suppression with intention to evade payment of tax cannot be alleged in this case in view of the confusion in law in this matter prevalent during the time and therefore demand for the normal period of one year only can be sustained in this case and penalties u/s 80 of Finance Act, 1994 are waived. See Vishal Traders v. CCE [2009 (11) TMI 137 - CESTAT, NEW DELHI] Further, in this type case of cases where the service provider has not been able to realise service tax separately from the person availing service, the Tribunal has been holding that the value realised should be considered as cum-tax value. See CCE&C v. Advantage Media Consultant [2008 (3) TMI 59 - CESTAT KOLKATA] upheld by Apex Court [2008 (10) TMI 570 - SUPREME COURT] – Decided partly in favor of assessee.
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