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Commissioner of Customs, Central Excise & Service Tax, Meerut-I Versus M/s Jaspal Darshan Lal & M/s Darshan Lal

2016 (8) TMI 449 - CESTAT ALLAHABAD

Cargo handling services – Services under contract for loading, unloading and shifting of sugar bags from the floor of the mills to godown, from one godown to another godown or as desired by their clients – Circular dated 01.08.2002 states if the cargo handling service is provided by individual that does not come under the preview of taxability. - Held that: - In the absence of any evidence produced by revenue that the manpower supplied by respondent carried out any work outside the factory p .....

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tant Commissioner (AR), for Appellant Ms Rinki Arora, Advocate for Respondents ORDER This appeal is filed by the Revenue against Order-in-Appeal No. 212-213-CE/MRT-I/2008 dated 24/12/2008 passed by Commissioner of Central Excise & Customs (Appeals), Meerut-l. 2. The respondents were providing the services under contract for loading, unloading and shifting of sugar bags from the floor of the mills to godown, from one godown to another godown or as desired by their clients. M/s Jaspal Darshan .....

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how cause as to why Service Tax to the tune of ₹ 15,04,834/- for the period from 01.11.2005 to 31.03.2007 should not be recovered from them invoking provision to Sub-section (1) of Section 73 of the Finance Act, 1994. The said show cause notice was adjudicated through Order-in-Original dated 13.08.2008 wherein the original authority has held that both the respondents were providing "Cargo Handling Service" and confirmed the said demand of ₹ 24,16,100/and ₹ 15,04,834/- .....

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ndled by a cargo handling agency as defined in Sec. 65(105)(zr) of the Finance Act, 1994. Neither the impugned order nor the show cause notice has mentioned that the appellant has a cargo handling agency. The sugar mill, in the absence of the regular contractor, for their own convenience, made the appellant a supervisor of fellow labourers and the commission meant for the contractor was given to the appellant which they had distributed among fellow labourers. I find that loading, unloading and s .....

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d sugar mill where they were working actually as labourers. However, the said activity i.e. supply of labour would be more appropriately covered under the category of manpower recruitment agency and not cargo handling agency service. Since the issue in the impugned order as well as in appeal is not related to Manpower Recruitment Agency, as both the show cause notice and O-in-O of adjudicating authority is confined only to service tax payable as cargo handling agency. Hence the applicable servic .....

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ntion subsequently is to transport sugar by any means of transport i.e. Truck, Rail, Ship or Aircraft is merely an assumption. The demand cannot be raised on assumptions and presumptions. The Hon'ble Supreme Court has held in the case of M/s Gain Mahtani Vs State of a Maharastra-AIR 1971 SC 1998. "finding of revenue authorities based on pure assumption and conjecture and no evidence should be quashed". The Hon'ble CESTAT have consistently held that demand based on assumption an .....

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4. Challenging the said Order-in-Appeal dated 24.12.2008 Commissioner of Customs, Central Excise & Service Tax Meerut-l has preferred this appeal and prayed to set aside the said Order-in-Appeal. The ground of appeal is that as per CBEC Circular dated 01.08.2002 if the cargo handling service is provided by individual that does not come under the preview of taxability. In the instant case Cargo Handling Service is provided by partnership firm hence the said Circular is not applicable. 5. Hea .....

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al has held that in the said case the service was not rendered by an individual but by the propriety concern and held that the service was cargo handling service. The Learned DR further argued that in the case before this Tribunal the services were rendered by partnership from and not by individual and that it should be classified under "Cargo Handling Services". 6. The Learned Advocate for respondent submitted that in the show cause notice or the proceedings nowhere any evidence was p .....

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ludes shifting of sugar bags from conveyer belt to deferent godowns, stocking there and loading of such bags on trucks. Further, he has relied on this Tribunal's decision in the case of Gaytri Construction Co. Vs Commissioner of Central Excise, Jaipur 2012 (25) S.T.R. 259 (Tri-Del.). This Tribunal in the said case has held that shifting of goods within factory premises will not come within the scope of cargo handling services. Therefore, their case is squarely covered by the case law in the .....

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