TMI Blog2011 (5) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... fication for invoking Section 80 and waiving the penalty imposed on the appellant under Section 75A, 76, 77 and 78 of the Finance Act - in favour of assessee. - 582 of 2010 (SM) - 314/2011-SM(BR) - Dated:- 31-5-2011 - Rakesh Kumar, J. For Appellant: Ms Sukriti Das, Adv. For Respondent: Mrs Rimjhim Prasad, SDR Per: Rakesh Kumar: The appellant is a proprietorship concern of Shri Gobind Singh Parmar and during period of dispute i.e. during period from 16/8/02 to 31/12/06 they, were providing the service of loading of urea to M/s DSCL, Shriram Nagar, Kota, which according to the department was covered by the service tax entry "cargo handling service" and was taxable w.e.f. 16/8/02. However, they were not paying the service ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been filed for setting aside the penalty on the appellant under Section 75A, 76, 77 and 78 of the Finance Act, 1994. 2. Heard both the sides and have perused the records. 2.1 Mrs. Sukriti Das, Advocate, the learned Counsel for the appellant, pleaded that the appellant are only contesting the penalty imposed on them, that the entire amount of service tax alongwith interest has been paid by them, that non-payment of service tax by the due date was for the reason that during the period of dispute on account of Board, Circular No. B 11/1/2002-TRU dated 1/8/02, wherein it had been clarified that the cargo handling service provided by a person individual capacity would not be taxable and since the appellant are a proprietorship concern, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concern of Shri Gobind Singh Parmar, who was providing the cargo handling service. I find that the Board vide Circular No. 11/1/2002-TRU dated 1/8/2002 had clarified as under:- "Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency." In this case, the appellant by hiring labourers provided cargo handling service to its emp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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