TMI Blog2011 (12) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - ST/328/2008 - ST/633/2011 - Dated:- 8-12-2011 - ASHOK JINDAL, MATHEW JOHN, JJ. B.L. Narasimhan and S. Vasudevan for the Appellant. Sheo Narayan Singh for the Respondent. ORDER Mathew John, Technical Member The Appellant had entered into an agreement with M/s South Eastern Coal Field Ltd (hereinafter referred to as "SECL") for hiring out payloaders to SECL and for loading of coal into the wagons at railway siding at Junnadih and Gevra. The dispute involved in this case is whether the services rendered by the Appellant to SECL was covered under the entry for "cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of coal available in the Junnadih Rly siding shall have to be done by engaging your pay loader and loading coal into Railway wagons at Junnadih Rly siding. The loading of coal shall be done so that the space is available for unloading of tippers carrying crushed coal from Gevra/Dipka/Dipka Expn and shall not interrupt movement/unloading of tippers engaged for transportation of crushed coal. 3. The quantity of coal loaded into wagons shall be assessed on the basis of Railway receipt. It shall be the responsibility of the contractor to ensure that the wagons are loaded upto the level permitted by the management and for this purpose, they shall level the coal loaded into wagons. The work will have to be done as per the instructions of Chief General Manager, Gevra Area/Dy General Manager, Gevra Project. 4. The work will have to be completed within the period 12 months which will be reckoned from 10th day of issue of work order/LOI or from the actual date of commencement of work whichever is earlier. 5. The quantity of coal is approximate the management reserves the right to enhance or reduce the quantity during the validity of contract. 6. To ensure smooth movement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activity of loading, unloading, packing and unpacking and therefore service tax was not leviable. It is submitted that they were not handling cargo and they were not "Cargo Handling Agency"; (v) It is argued that only agencies like Container Corporation of India, Air Port Authority of India, Inland Container Depot, Container Freight Stations etc., can be considered as "Cargo Handling Agency". They rely on para 3 of CBEC's circular F. No. B11/1/2002-TRU dated 01-08-2002 explaining the scope of "cargo Handling service". (vi) If at all they are doing any activity of loading cargo it is incidental to hiring out payloaders and hence cannot be considered as cargo handling agency. They rely on the following decisions of the Tribunal,- (a) CC C v. B.K. Thakkar [Final Order No. A/1877/Kol./2007, dated 24-10-2007] (b) Dalveer Singh v. CCE [2008] 12 STT 226 (New Delhi - CESTAT) (vii) Loading done by mechanized means cannot be considered as cargo handling. (viii) Department has not demonstrated any positive act of suppression to invoke extended period of five years to issue the demand. There was no conscious or deliberate withholding of information. They rely on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry for "cargo handling service". The Tribunal took note of the conflicting decisions of the Tribunal and Circulars issued by the Board and came to the conclusions that extended period of time could not be invoked. That case was for the period 16-08-2002 to 31-08-2005. Even in the case of Gajanand Agarwal v. CCE C [2009] 18 STT 353 (Kol. - CESTAT), though the issue was decided in favour of Revenue it was held that there was no intention to evade payment of tax in view of the confusion in law. 7. The Ld. JCDR on the other hand submits that the contract was for loading of coal into railway wagons rather than for hiring out payloaders. He points out that the rate specified in the contract was for quantity of coal loaded and not with reference to number of payloaders made available. The fact that the SECL were checking whether the Appellant was doing their service properly cannot mean that SECL was doing the activity themselves. SECL did not have the equipment or manpower to do the job in question and hence the proposition that SECL was doing the activity themselves is not acceptable. 8. The Ld. SDR points out that this type of contract was examined at length by the Tribunal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o these cannot be an argument that an individual undertaking handling of cargo cannot be a "cargo handling agency". So we do not see merit in this argument. 12. We have also considered the various decisions of High Court and Tribunal pointed out to us. The most important of the decisions to be considered for the appellants is that in S. B. Construction Co. Para 10 of the order reads as under: "10. In the instant case, the coal is handled/moved from railway wagons to the site of Thermal Power Station with the aid of wagon tippling system to be fed in the boiler bunkers through conveyor system. It is evident that handling of the coal is done through wagon tippling system or conveyor system, they are mechanical devices and no motor vehicle is involved in the said handling. The clarification made by the CBEC also supports the petitioner's contention. It clearly appears that the Service tax has been levied under the 'Cargo Handling', on such services which undertakes the activities of packing, unpacking, loading, unloading of goods to be transported by any means of transportation namely truck, rail, ship or aircraft. In the instant case the service provided by the petitioner Firm un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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