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M/s Nizamsingh Chauhan, M/s V.J. Trivedi Versus Commissioner of Central Excise And Vica-Versa

2015 (9) TMI 943 - CESTAT NEW DELHI

Cargo handling service - for railing and transport of Maganese Ore the service involved wagon loading, truck loading, transport including stacking and de-stacking/rehandling of manganese ore. - penalties under Section 76, 77 and 78 - Held that:- transport activity (excluding stacking) formed a very small part of the entire service rendered, inasmuch as while hiring of truck including stacking was @ of ₹ 1,15000 / PMT, transport excluding stacking was only ₹ 10,000 / PMT, wagon loadin .....

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- The service was rendered to a public sector unit which had taken up the matter with CBEC contending that it was not taxable. It is thus evident that it is not a case where the appellant-assessees could/would have intended to suppress the fact of rendition of the impugned service. The appellants also supplied the information within about 3 weeks of the date on which they were summoned to appear before the Central Excise officer. The Commissioner (Appeals) has taken due note of some of the judg .....

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os. ST/456-457/2009 have been filed by the appellant - assessees against order-in-Appeal 155 & 156/BPL/2009 dated 5.3.2009 which upheld the respective orders-in-original dated 13.10.2008 and 10.9.2008 only to the extent of sustaining the demand along with interest for the normal period of one year under cargo handling service for the service rendered by these appellants to M/s Maganese Ore India Ltd. (MOIL) but the said orders-in-original the demand under cargo handling service was confirmed .....

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as called. The appellant - assessees sent a Fax received at 11.06 A.M. on the date of the hearing seeking adjournment on the ground that their Advocate was pre-occupied. As the request was received rather too late and that too to convey the Advocate's pre-occupation in such perfunctory manner it is not considered good and sufficient ground to grant adjournment and so we proceed to decide the appeals on merit. 3. The appellant - assessees have contended in their appeals that the activity unde .....

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L) had taken up the matter with the CBEC regarding the taxability of the activity and requested that the matter may be kept pending. 4. Revenue on the other hand has contending that there was no ambiguity about the activity being squarely covered under cargo handling service as the definition given in Section 65(23) ibid left no scope for any confusion in this regard and that the summons issued to the appellants were not answered inasmuch as they (i.e. the appellants) did not mark their presence .....

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;with intent to evade payment of duty" does not appear in sub-clause (d) of proviso to Section 73 (1) of the Finance Act, 1994 5. We have considered the contentions of both sides and we have also perused the contract under which the service was rendered. As is evident from Para-II of the tender document for railing and transport of Maganese Ore the service involved wagon loading, truck loading, transport including stacking and de-stacking/rehandling of manganese ore. It is also seen that tr .....

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llant clearly fell under the category of cargo handling service as defined in Section 65(23) ibid. This conclusion is in harmony with the ratio of the judgement in the case of Coal Carriers Vs. CCE - 2011 (24) STR 395 (Ori.). The judgement of CESTAT in the case of CCE Vs. Vinshree Coal Carriers Pvt. Ltd. - 2008 (10) STR 473 (Tri.-Kolkata) holding transport of coals within the mining area not subjected to service tax under cargo handling service was passed following the judgement of the CESTAT ju .....

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