TMI Blog2013 (5) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as defined in Section 65(105)(zzp) read with Section 65(50b). Since the impugned adjudication orders have failed to consider whether the proceedings against several appellants here are barred by limitation and no extended period of limitation could be invoked in lieu of the transactions having been noticed by the Revenue qua notices issued to NCL and failed to analyse and consider the material on record i.e. that service tax was already assessed/recovered from NCL treating the service/transaction as transport of goods by road, impugned adjudication orders are quashed and the matters remitted to the adjudication authority, to consider and determine whether the extended period of limitation could be invoked in the circumstances and whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax, interest and penalties on these transactions treating the service provided by the assessees and others and received by NCL as the service of transport of goods by road, defined Section 65(105)(zzp) read with Section 11 (60b). The adjudication order dated 9.1.2008 in respect of NCL was passed pursuant to the Show Cause Notice dated 20.9.2007 issued to NCL under Section 68(2) of the Finance Act 1994 (the Act) read with Rule 2(1)(d) (v) of Service Tax Rules, 1994 whereby NCL, the recipient of the service of transport of goods by road, is liable to remit service tax. It is stated before us that the order of assessment (adjudication) dated 9.1.2008 in respect of NCL treating the service provided by the appellants as the service of tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed analysis of the relevant provisions, Orissa High Court declared that goods become cargo when loaded into a railway wagon/truck/tipper; that the distinction between goods and cargo is evident from the fact that transport of goods is liable to tax under the category transport of goods by road services that cargo handling services is defined in relation to cargo which clearly indicates that cargo handling services are distinct from transport of goods by road. 6. In view of the decision in Coal Carriers, the contention on behalf of the appellants that the service rendered by them truly and fairly constitutes transportation of goods by road cannot be countenanced. Services provided by the appellants clearly constitute cargo handling serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and collection of tax. The adjudication authority was also intimated the fact that an adjudication order dated 9.1.2008 was passed against NCL in respect of the same transaction treating the same as the taxable service of transport of goods by road. 9. The several adjudication orders do not disclose any analysis either regarding bar of limitation nor any coherent analysis regarding the contention that the service having already been classified/assessed and service tax levied, treating the service as transport of goods by road ought not to be assessed and service tax levied under the category cargo handling services. The adjudication authority (by order dated 12.1.2009 in the case of Om Transport) has recorded a non-sequitor viz. that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to NCL; and failed to analyse and consider the material on record i.e. that service tax was already assessed/recovered from NCL treating the service/transaction as transport of goods by road, impugned adjudication orders are quashed and the matters remitted to the adjudication authority, to consider and determine whether the extended period of limitation (under the proviso to Section 73(1) of the Act) could be invoked in the circumstances and whether service tax liability could again be assessed and levied on the ground that the service provided by the appellants are cargo handling services when the same service and the value thereof was assessed as transport of goods by road and service tax thereon collected from NCL, as the service recip ..... X X X X Extracts X X X X X X X X Extracts X X X X
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