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2014 (7) TMI 323 - CESTAT BANGALOREGTA service or Cargo handling service - activity of unloading fertilizers from the vessels, transporting them to the warehouse of Indian Potash Ltd. (IPL), packing them in 50 Kg bags in the warehouse and thereafter transportation of fertilizers to railway sidings for delivery to the destination - appellant/IPL have discharged service tax liability as GTA service receiver - On packing activity, appellant has paid service tax under cargo handling service - denial of 75% abatement availed by the appellant during the period in respect of GTA service - Held that:- amendment of definition of ‘cargo handling service’ which has a consequence on the demand has not been considered by the Commissioner probably because there was no defence put up on behalf of the appellant. Further, there were CBEC Circulars issued clarifying as to which activity is to be considered as cargo handling and which activity has to be considered as GTA service which were also not considered. Moreover, there is a finding by the Commissioner that the contract is composite. On going through the records and the billing process adopted by the appellant, it appears that the contract cannot be exactly called a composite contract. - there were two separate contracts for handling and transportation and stevedoring - The packing aspect has no handling and that has been treated separately by the appellant and transportation is in any case a separate contract. Therefore, the action of the department in clubbing both under one contract is not correct since the whole case of the department is that the entire activity is to be treated as cargo handling and therefore the fact that there are two contracts, makes vital difference to the issue - appellant did not participate in the litigation before the original authority, we consider that in the interest of justice, the appellant should be given another opportunity, since on a prima facie basis, we find that the appellants have paid taxes, which according to them is correct - Matter remanded back - Decided in favour of assessee.
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