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2019 (10) TMI 48 - AT - Service TaxCargo handling service - demand of service tax - the demand was confirmed under the cargo handling service, the said order of the Tribunal was recalled in ROM application and appeal was listed for fresh hearing - extended period of limitation - HELD THAT:- Though the Department challenged the recalling of the order before the High Court but High court has dismissed the petition of the Revenue. Since the final order passed by the Tribunal is recalled, the appellant is at liberty to raise all the legal issues. Further in fact going by the principles laid in Section 65A of the Finance Act, 1994, the demand should not have been confirmed under ‘cargo handling service’ because the essential character of the main activity in the present case is towards transportation charges which is ₹ 53/-pmt whereas loading and unloading, it is only ₹ 20/- pmt. Further we find that any composite service, the classification of the service should be made. The demand of service tax under ‘cargo handling service’ in the present case is not tenable under law. Time limitation - HELD THAT:- In the first round, the period of dispute is December 2002 to June 2004 and the show-cause notice was issued on 07.05.2005 and during the said period, six months was provided for issuing the show-cause notice from the relevant date. Though the Department has invoked the extended period, Department has not brought any material on record to show that there was an intention to evade service tax on the part of the appellant because during the relevant time, this cargo handling service was introduced and a circular was also issued by the Department which clarified the position and the appellant entertained a bona fide belief that they are not liable to pay service tax under loading and unloading of cargo - the extended period has been wrongly invoked and entire demand is barred by limitation. The demands in both the cases on merits as well as on limitation is set aside - appeal allowed.
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