TMI Blog2007 (1) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... s. As per the contract, the scope of work consisted as packing of cement, loading of cement, unloading of raw material, etc. For the above purpose, the appellants supplied labourers to M/s. MCL. The Revenue initiated action against the appellants for payment of service tax under the category of cargo handling service. A demand of Rs. 4,84,307/- for the period from 19-8-2002 to 31-3-2004 was confirmed. The appellants approached the Commissioner (Appeals) for relief. The appellant relied on the decision of the CESTAT Northern Bench, New Delhi in the case of M/s. J J Enterprises v. CCE, Raipur - [2006 (3) S.T.R. 655 (Tri.) = 2005 (186) E.L.T. 189 (Tri.-Del.)] wherein in similar circumstances the Tribunal held that the services rendered would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n below :- The cement is extracted from the silo and is packed automatically into bags containing 50 kg. by the packer man of the company. The packer man fixes it into the packing machine nozzle and the cement is filed automatically. The open slit of the bags is stitched by the machine and discharged to the conveyor once 50 kg of cement is filled in it. The conveyor's carry these filled bags to the loading point. The conveyor hence, near the railway wagon drops the cement bags and these cement bags are stacked in the wagon. As the entire system is mechanized, the labourers supplied by the appellants played only an ancillary role on packing, loading and unloading of the cement. The labourers supplied by the appellants were to ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her own machineries used for packing or loading nor hire any machineries. The machineries, conveyor system and the packing materials are all owned by M/s. MCL. The labourers pro vided by the appellant do not undertake any activities as envisaged in the definition of cargo handling service. (iii) The issue is an identical case as already settled by the Tribunal in the case off J J Enterprises v. CCE, Raipur - [2006 (3) S.T.R. 655 (Tri) = 2005 (186) E.L.T. 189 (Tri.-Del.)] wherein it is held that when a person supplies labour who supplements mechanized loading or movement c the cement bags, he would not satisfy the definition of cargo handling service and is not liable to service tax. (iv) The Commissioner (Appeals) was wrong in holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to penalty under Sections 76, 77 78 of the Finance Act, 1994. 8. The learned JDR Shri Sambi Reddy said that on going through the agreement, it is very clear that the appellants are to undertake the activity of packing, loading and unloading. These activities definitely fall within the scope of cargo handling service. Further he said that the Commissioner (Appeals) has clearly distinguished the case of M/s. J J Enterprises v. CCE, Raipur (supra) from the present case as in the present case the contract is for supply of labourers. 9. I have gone through the records of the case carefully. The main contention of the appellants is that the entire system of packing of cement, loading and unloading of the same is mechanized. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le is only ancillary. The ratio of the Tribunal's decision is clearly applicable to the present case. The Tribunal has held the following :- .... The facts and circumstances make it clear that the appellant is not rendering cargo handling service. In the given factual situation, cargo handling cannot take place in the absence of packing machine and conveyer. The appellant has no control on them. The appellant is right in his contention that it is only supplying manpower and supplying manpower cannot be equated with providing the service in question. If such a view is taken, who ever supplies the manpower for an activity would become the provider of the activity itself. If manpower is supplied for construction, the manpower supplied ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
