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The Deputy Commissioner, Central Excise & Another Versus Sushil & Company

2016 (4) TMI 987 - SUPREME COURT

Cargo Handling Service - Contract entered for the purpose of packing, loading and unloading etc. of the goods, for which labour was supplied by the respondent to M/s Birla Corporation Ltd. - Department contended that it was not appropriate for the High Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided - Held that:- the High Court has simply gone by the contra .....

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y mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself. - Whether the contract could be treated as 'Cargo Handling Service' within the meaning of Entry 23 of Section 65 of the Act - Labour is supplied by the respondent to M/s Birla Corporation Ltd. - Respondent contended that no services w .....

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e from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and; (2) the service provider must independently be involved in loading-unloading or packing-unpacking of the cargo. - On reading of the contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court ha .....

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lick, Adv. Mr. Ajay Kumar, Adv. Mr. B. Krishna Prasad, Adv. For the Respondent : Mr. Kavin Gulati, Sr. Adv. Mr. Praveen Kumar, Adv. Ms. Babita Sant, Adv. ORDER 1. The respondent-assessee herein is the holder of a Certificate of Registration in Form ST2 under Section 69 of the Finance Act, 1994 (hereinafter referred to as, "the Act"). This Certificate was given to him on 29.10.2004 under the category 'Business Auxiliary Service'. The respondent also obtained registration as ' .....

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a prima facie view that the contract was for the purpose of packing, loading and unloading etc. of the goods, for which labour was supplied by the respondent to M/s Birla Corporation Ltd. On this basis, a show cause notice was issued to the respondent-assessee alleging that the respondent was a service provider and, by clever means, it was a modus operandi to evade service tax as it was raising two separate bills for the same work i.e. in one bill, the respondent was charging the amount of paym .....

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t by entering into the aforesaid contract, as it was only supplying labour and the labour was not doing any work of packing, unpacking, loading and unloading of any cargo. The High Court, by the impugned Judgment, has accepted the plea of the respondent, resulting into allowing the writ petition and quashing the show cause notice. It is this Judgment of the High Court, the validity of which is questioned by the appellant-Department in the present appeal. 4. Before coming to the issue at hand, we .....

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d taking into consideration all the averments, which were made in the show cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show cause notice are accepted, the said contract does not amount to providing any 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed .....

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#39; means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for no containerized freight, services provided by a contrainers freight terminal, for all mode of transport and cargo handling service incident to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods." 6. The High Court, on the interpretation of the aforesaid Entry, has observed that two condit .....

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independently be involved in loading-unloading or packing-unpacking of the cargo. 7. The aforesaid meaning given by the High Court while interpretating Entry 23 of Section 65 is perfectly in order and justified. On that basis, we have to see whether the twin conditions mentioned therein are satisfied in the present case or not. 8. We find from the record that in the instant case, as per the contract entered into between the respondent and the customer, namely, M/s Birla Corporation Ltd., the res .....

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ut of the factory. This work was, in fact, been performed by the automatic machines. It is through these automatic machines, the cement bags were loaded, unloaded, packed or unpacked and this included Cargo Handing Services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export c .....

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