TMI Blog2014 (7) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... e service’, rendered by Appellants cannot be considered as Cargo Handling service in view of the decisions in the case of S.B. Construction Co. [2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR)] and Modi Construction Company - [2008 (6) TMI 22 - CESTAT, KOLKATA ]. There is nothing in the Show Cause Notice to even suggest that there was a positive act on their part to suppress or wilfully misstate any facts to evade service tax. Indeed, as is evident from the various judicial pronouncements, there had been confusion regarding what is cargo handling or even as to what is cargo. In the wake of the appellant’s belief that their activity was not cargo handling, their not taking service tax registration or not filing return i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Original under 11 ST/Jt. Commr./2008 dated 24.3.2008, issued in respect of Show Cause Notice No. V(ST)/Adj/34/2007/3960 dated 10.8.207 covering the period from 16.8.2002 to 15.11.2006 in respect of service rendered to sugar factory at Shamli the adjudicating authority held as under :- (1) I confirm demand of service tax amounting to ₹ 13,67,536/- and order the same to be paid with interest under Section 73 75 respectively of the Service Tax Act. (2) I impose penalty of ₹ 500/- on the party under section 75A of the Service Tax Act. (3) I impose penalty of ₹ 200/- per day till the date of deposit of Service Tax under section 76 of the Service Tax Act, subject to that the amount of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. (ii) The process of packing, loading were mechanised and the Appellant did not own the equipment and merely supplemented the process by supplying labour. (iii) They were under the genuine belief that their activity was not taxable and there was no wilful mis-statement or suppression of facts and therefore demand is time-barred. (iv) Their labour were only doing the loading, unloading shifting of bags within the factory. (v) CESTAT in their own case for same activity has decided the issue in their favour vide Order No. 51834/2014 dated 17.4.2013. Similarly the CESTAT judgement in the case of CCE, Meerut-I Vs. Surinder Kumar - 2010 (20) STR 678 (Tri.-Del.) is also in their favour. (vi) In case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. 7. The Appellants argument that they were only providing manpower is not sustainable because the activities/services of, to quote from the Show Cause Notices, lifting, stacking and loading of sugar bags were done by the persons who were on the pay roll of the Appellant and the service receivers made the payment to the Appellant. Therefore, it is evident that the said services of lifting, stacking and loading of sugar bags were provided by the Appellant. 8. In the case of CCE, Meerut-I Vs. M/s Surender Kumar Final Order No. 56355/2013, CESTAT, Delhi has held as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of CCE, Ranchi vs. Modi Construction Company reported in 2011 (23) STR 6 (Jhar.). In the result, Revenue appeal is dismissed. Also is yet another Order No. 51834/2014 dated 17.4.2013 CESTAT in the Appellant s own case stated as under : Being aggrieved with the order passed by the Commissioner (Appeals) Revenue has filed the present appeal. The short issue required to decide as to whether the respondent who was engaged in shifting of sugar bags from one place to another within the factory premises of sugar mill is required to be considered as cargo handling service provider or not. We find that the earlier appeal of the Revenue against same assessee for a different period stands rejected by the Tribunal vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to item No. 4 there is no evidence produced as to whether this item of work was actually performed and therefore threadbare discussion on the point whether this item of work can get stretched into the scope of cargo handling service is pointless. It is also because in the Show Cause Notice, the bouquet of services (lifting, stacking and loading of sugar bags) has been sought to be classified as cargo handling service and therefore such activity-wise vivisection is not a point at issue in this case; more so in the absence of any evidence of all such activities having been performed and the individual quantification thereof. In this context, it is pertinent to refer to the case of CCE Vs. Gayatri Construction Co. 2012 (25) STR 259 (T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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