TMI Blog2013 (12) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... Show Cause Notice in this case was issued on 23.09.2003. ST-3 Returns were submitted by the appellants on 22.11.2002. Therefore Show Cause Notice is within one year from date of filing of ST-3 Returns which is relevant date for computing the time limit. We therefore hold that demand is within time limit of normal period. We therefore hold Commissioner has rightly confirmed the Service Tax along with interest against the appellant - Penalty u/s 76 upheld - Decided in favour of Revenue. - ST/350/2008 with ST/Cross/322/2009, ST/368/2008 - Final ORDER NO. No. 57309-57310/2013 - Dated:- 16-8-2013 - Mr. G. Raghuram and Mr. Sahab Singh, JJ. For the Appellant : Shri Amrish Jain, Promod Kumar G. Dixit , AR For the Respondent : Shri Jeetu Gupta Nitesh Garg, CA, Shri J. K. Mittal, Advocate JUDGEMENT Per Sahab Singh : This Appeal is filed by M/s Naresh Kumar Co. Pvt. Ltd. (hereinafter referred to as appellants) against the Order-In-Original No. 4/ST/COMM/GJB/2008 dated 03.03.2008. 2. Brief facts of the case are that appellants were appointed as consignment agent by the Tata Iron Steel Co. Ltd. (hereinafter referred to as TISCO or clients) for operating and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt all of their books of account and other relevant records. During the course of enquiry copies of the consignment agency contract/agreement entered into by the TISCO with the appellant as extended from time to time covering the period of dispute were obtained. On examination of the contract Department was of the view that activity undertaken by the appellants is clearly covered under Section 65, (72) as a Clearing and Forwarding Agent service and which is taxable under the Finance Act and accordingly Show Cause Notice dated 23.09.2003 was issued to them which was adjudicated by Commissioner vide impugned order which is challenged by the appellant in present appeal Revenue has also filed appeal for enhancement of penalty under Section 76 of the Act. 3. Ld. Advocate appearing for the appellants Shri J.K. Mittal submits that for the same issue and for the same period a Show Cause Notice dated 09.10.2002 was issued to them for which defence reply was filed by them and hearing also took place on 25.11.2002 but no adjudication order was passed by the Department. Appellants paid the service tax amounting to Rs. 33,67,170/- under protest. He further submits that a notice dated 20.05.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn nor any corrigendum/addendum was issued and in view of decision if Tribunal in case Mahindra Mahindra Ltd. Vs. CCE, Mumbai, 2006 (196) ELT 62 (Tri.- Mumbai), Corrigendum/addendum cannot be issued after submission of defence reply Moreover even though no amount was specified in the first Show Cause Notice it does not become invalid in view of 5 Member Bench decision in case of Bihari Silk Rayon Processing mills (P) Ltd., Vs. CCE, Baroda 2000 (121) ELT 617 (Tri.- LB) Moreover once disputed duty has been paid by the assessee there cannot be a case of suppression in view of decision of Karnataka High Court in case Shree Krishna Pipe Industries, 2004 (165) ELT 508 (Kar.) 8. As on merits, Ld. Advocate submits that first two notice treated them as consignment agent and demanded service tax under category of Clearing and Forwarding Agency service. Appellants never sold any goods of TISCO but only handled the goods and are therefore not covered as consignment agent or under Clearing Forwarding Agent in view of decision of Karnataka High Court in case of Mahaveer Generics 2010 (17) STR 225 (Kar.). This is admitted position that appellants were engaged in loading, unloading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCO office. Moreover appellant s were well aware that service is taxable as TISCO were discharging service tax under reverse charges mechanism prior to 01.09.1999. On simultaneous imposition of penalty under Section 76 and 78, Delhi High Court in case of Bajaj Travels Ltd. reported in 2012 (25) STR 417 (Del.) has held that penalty is imposable under both Sections. It is the latest and jurisdictional High Court decision and is binding on Tribunal. Cum Tax benefit is not available to the appellants in view of Supreme Court decision in case Amrit Agro Industries Ltd. reported in 2007 (210) ELT 183 SC Objection raised by the appellants on Revenues appeal are not sustainable at this stage as no such objections were raised in cross objections filed by the appellants. 14. After haring both sides, we find in this case Order-In-Original has been issued by the Commissioner adjudicating the Show Cause Notice V(91) STC/NK Co/GZB/19/2003 173 dated 23.09.2003 Main issue involved in this appeal is whether appellants are liable to pay service tax on their activities under Clearing Forwarding Agents Service and Consequently liable to interest, and penalties under Finance Act. 15. Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is not applicable as the matter is neither under KVSS nor all dues have been paid by the appellants. In R.C. Fabrics case, assessee waived the Show Cause Notice and hearing and thereafter a adjudication under dated 10/15 Jan 1991 was passed by the Assistant Collector of Customs. Thereafter DRI took up investigation and issued another Show Cause Notice 18.02.1991 which was adjudicated by the Additional Collector on 25.02.1991 on the basis of Test reports dated Nov 26/Dec 4 1990. Delhi High Court held that since first adjudication order has attained finality and fresh proceedings in report of same goods are null and void. We find that this decision is not applicable to present case on two grounds firstly in present case Show Cause Notice dated 09.10.2002 has not been adjudicated and secondly the said decision of Delhi High Court is reversed by Supreme Court as reported in 2002(139) ELT 12(SC). In case of SACI Allied Products Ltd. Tribunal has decided the issue which was not raised is Show Cause Notice and in order passed by Collector. There is no such situation here in the present case: In Toyo Engineering India Ltd. (2006(201) ELT 513(SC) the Supreme Court held that depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignment Agent and Consignment Agent brought under statutory definition by inclusive clause of Clearing Forwarding Agent Service, activities of consignment agent are classifiable as Clearing Forwarding Agent Service. We also note that activities of appellant have been classified Clearing Forwarding Agent Service in appellant s own case by this Tribunal vide order dated 29.05.2008 reported in 2008 (11) STR 578 (Tri. -Kol.). We therefore following the said decision hold that appellants are chargeable to service tax for their activities under Clearing Forwarding Agent Service. We order accordingly; It is the contention of the appellant that extended period is not applicable in present case as Show Cause Notice were issued to them by the Department on 09.10.2002 and 18.05.2003 and in view of the fact that Show Cause Notices were issued to the appellants Revenue can not invoke extended period. We find that Show Cause Notice in this case was issued on 23.09.2003. ST-3 Returns were submitted by the appellants on 22.11.2002. Therefore Show Cause Notice is within one year from date of filing of ST-3 Returns which is relevant date for computing the time limit. We therefore hold ..... X X X X Extracts X X X X X X X X Extracts X X X X
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