9911796707
TMI Blog2014 (2) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 4 September 2013 of the Customs, Excise and Service Tax, Appellate Tribunal (the Tribunal). By the impugned order dated 4 September 2013, the appellant was directed to predeposit Rs.25 Crores for the purposes of the appellant's appeal being entertained on merits against the orders dated 29 November 2012 and 18 February 2013 passed by the Commissioner of Central Excise which confirmed in the aggregate service tax demand of Rs.58.53 Crores along with interest thereon and an equivalent penalty. 3 The basic dispute that arises between the parties is whether service tax is chargeable under the head 'Cargo Handling Service' even in respect of consideration received for transportation of goods in barges from a mothership to the jetty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. 5 Mr. Naresh Thacker, learned Counsel appearing for the appellant submits that the impugned order dated 4 September 2013, directing the appellant to deposit an amount of Rs.25 Crores is unreasonable in facts of the present case. In support of the above, the following submissions were urged:( a) The transportation service is a separate and distinct activity from the activity of 'Cargo Handling Service'. The services provided by the appellant's were three distinct services namely ( i) Cargo Handling Service; (ii) Transportation service i.e. transportation of the cargo from the mothership to the jetty in barges; and (iii) transportation of goods from one minor port to another minor port. The appellant is charging its customers se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gone into at the time of the final hearing of the appeal. (e) The audit team of the Central Excise Department had on examination in 2008 of the appellant's activities concluded that the services of barges are taxable under port service and had directed the appellant to pay service tax amounting to Rs.28.11 Crores under the head 'Port Service'. Therefore, the department itself was of the view that the activity of barging cannot be included under the head 'Cargo Handling Service'. (f) Cargo Handling Service rendered in respect of export goods is exempted from service tax. The amount attributable to the above service has not been reduced while computing the demand. (g) The appellant has not record any service tax from its customers on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al hearing. However, we note that the Tribunal has not considered the contention of the appellant that the demand to the extent of Rs.28 Crores is time barred. We find that the appellant has a strong prima facie case with regard to the limitation in view of the fact that as late as in February 2008, the audit wing of the Department carried out a detailed examination of the appellant's activities including barging and directed the appellant to pay service taxes under the head 'Port Services'. Thus, the department itself was of the view that the activity of barging is not classifiable under the head 'Cargo Handling Service'. However, all of a sudden for the first time in its show cause notice dated October, 2008, the above service was sought ..... X X X X Extracts X X X X X X X X Extracts X X X X
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