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TMI Blog2014 (7) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... in Appeal No. ST/228/2011, includes Rs. 2.93 crores demanded towards service tax and education cess, both for more or less for the same period. The appellant in the first appeal had taken up various works to be executed for the Vizag Steel Plant of M/s. Rastriya Ispat Nigam Ltd. (RINL), which works were sub-contracted to the appellant in the second appeal. The first appellant is a public sector undertaking and has obtained clearance from the Committee on Disputes for pursuing their appeal. The two appellants are coming within the jurisdiction of different Commissionerates, Commissionerate-I and II respectively. The show- cause notice in the case of the first appellant was issued on 19-12-2007 by Commissioner-I and that in respect of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the first appellant that 'cargo' and 'goods' are two different things and that the appellant was handling only 'goods' and not 'cargo' and hence cannot be said to have provided 'cargo handling service' to RINL. In this connection, reliance is placed on a few decisions viz., S.N. Uppar & Co. v. Commissioner - 2008 (11) S.T.R. 34 (Tri.-Bang.); ITW India Ltd. v. Commissioner - 2009 (14) S.T.R. 826 (Tri.-Bang.), etc. As regards 'management, maintenance or repair service', it is submitted on behalf of the first appellant that, for the period prior to 16-5-2005, service tax was leviable under this head only where the contract was purely one of maintenance. However, the learned counsel has not been able to produce any of the relevant contrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the head 'cargo handling service', the liability having been taken over by the main contractor should be enforced against them. It is submitted that, prior to issuance of Circular No. 96/7/2007-S.T., dated 23-8-2007 by the C.B.E. & C., the appellant did not have any occasion to believe that they were also liable to pay service tax qua sub-contractor. It was in that circular that the Board for the first time came out with a clarification to the effect that sub-contractors were also liable. The learned counsel for the second appellant further refers to the agreement between them and the main contractor and submits that the latter had clearly agreed to take over any service tax liability in respect of the works covered by the agreement. This a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax. Their plea of bona fide belief is not substantiated and therefore the invocation of the extended period of limitation is justifiable. With reference to the decisions cited by the learned counsel for the first appellant, the learned Commissioner submits that the facts of the cited cases are distinguishable. 5. We have given careful consideration to the submissions. Insofar as the case of the first appellant is concerned, we note that a major part of the demand (over Rs. 3 crores) is under the head 'cargo handling service'. The demand under 'management, maintenance or repair service' is to the tune of Rs. 98 lakhs, that under 'commercial or industrial construction service' is to the tune of Rs. 38 lakhs and the rest of the demand ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Euclid's theorem. Secondly, the definition of 'cargo handling service' has not undergone any significant amendment during the period of dispute. We have studied the definition and prima facie find that the activities in question would be covered by the main part of this definition. Incidental transportation of any goods would not per se take out such activities from the purview of the definition of 'cargo handling service'. We have also found no force in the plea of limitation. It is not the case of the appellant that they voluntarily disclosed their activities to the department. The departmental knowledge referred to by the learned counsel might be related to visits by the Range Officer to the factory of RINL. But there is nothing on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other words, the main contractor instilled in the mind of the second appellant a bona fide belief that the latter would not be liable to pay service tax in any circumstance. There was a circular of the Board, issued in 1997, which also prompted the second appellant to believe that they would not be liable to pay service tax qua sub-contractor. It was only in 2007 that the Board changed the view and clarified that a sub-contractor would also be liable like the main contractor for payment of service tax in respect of a given work. The period of dispute in this case is October 2002 - March 2007. From the above submissions of the second appellant, it appears that, during this period, they had reasons to maintain a bona fide belief as above qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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