9911796707
TMI Blog2014 (6) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue took a view that Service Tax is payable on such charges (Silo Charges) and accordingly impugned order has been passed after investigation, issue of Show Cause Notice and adjudication process confirming Service Tax demand for the period from April, 2003 to June, 2009. Penalty equivalent to Service Tax has also been imposed and further interest also has been demanded. 2. Seeking waiver of pre-deposit for the purpose of hearing the Appeals and also stay against recovery of the demands, the learned Consultant on behalf of the Appellant submitted the following points :- (a) This amount was collected as per the agreement between the buyer and the seller and it is nothing but part of the sale price. (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but silo charges was part of sale price of coal. (g) Further in the period subsequent to December, 2007 the sale price of coal included the Silo charges also and at present coal attracts excise duty also and excise duty is paid by the Appellant including the amount collected as Silo charges. That being the position, the activity is one of sale of coal and service is incidental. Therefore as held by the Hon'ble Supreme Court in the case of Bharat Sanchar Nigam Ltd., when the contract between the two parties is one of sales and service is incidental, Service Tax cannot be levied [2006 (2) S.T.R. 161 (S.C.)]. 3. He also drew our attention to the observations of the Commissioner in the impugned order that when sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Silo charges is fixed by Govt. of India by a Notification and this amount is collected only in respect of buyers who want this service from the Appellant. Therefore the loading of coal to the trucks by use of trucks/train by use of rapid loading system is a special service provided to customers and it is nothing but cargo handling service and therefore is covered by the definition. Under these circumstances the imposition of penalty, invocation of extended period and demand for Service Tax are sustainable. 8. We have considered the submissions made by both the sides. Even though detailed submissions have been made by both the sides, the issue is complex and requires to be considered by a detailed consideration of terms of contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to him is because Silo charges are collected because of a different Notification of Govt. of India. Even though we find some force in this argument, because of the definition of the service and service provider which we have discussed above, we feel that whether consideration of these arguments would affect the main clause or not would also require an in depth consideration and detailed analysis. Further in view of the complex issues involved when the legal aspects which we have discussed above, the Appellant also has a strong case as regards limitation. Having regard to the facts and circumstances of the case discussed above we find that Appellant has been able to make out a prima facie case in their favour and therefore requiring t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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