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TMI Blog2017 (11) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... portation of iron ore from Bilaspur Railway siding to various factories of manufacture of sponge iron. They are registered with the Revenue under the category of Cargo Handling Service and GTA service. Certain verification of records were conducted by the Revenue in the premises of the appellant. On completion of enquiry, the Revenue entertained a view that the assessee/appellant is not discharging service tax properly on their activities to be classified under Cargo Handling Service. Proceedings were initiated against the assessee/ appellant by issue of show cause notice dated 30/09/2009. The same was adjudicated by the Original Authority vide order dated 10/12/2010. A service tax liability of Rs. 20,80,306/- was confirmed against the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He submitted that the Revenue has proceeded based on total consideration received by the assessee/appellant and referring to the total quantum of iron ore handled by them. It is seen that the per metric tonne consideration works out to around to Rs. 30 only. Out of it Rs. 15/- per M.T. has to be paid to the labour contractor engaged to unload the iron ore at Railway siding at Bilaspur. The remaining amount is attributable for various activities like loading of ore in the truck, transportation and unloading of ore at the factory premises. Since, the assessee/appellant could not produce any written contract, the lower authorities proceeded with the documents submitted by the assessee/appellant alongwith deposition of the responsible person of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of such written contract, clear stipulation and quantification attributable to each activity we have to rely on the taxable consideration and the quantum of iron ore dealt with by the assessee/appellant. The lower authorities arrived at per metric tonne rate of Rs. 30/- for the whole gamat of activities. Admittedly, Rs. 15/- per M.T. is to be paid to the labour contractor engaged to unloading the iron ore from railway racks. That leaves an amount of Rs. 15/- per M.T. for remaining activities of loading of said ore into the trucks, transportation and unloading in the factory premises. Considering the quantification of consideration received alongwith the quantum of cargo handled, we are of the view that the assessee/appellant are essen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand for extended period on the ground of their bonafideness. 7. Regarding the appeal by the Revenue, we note that the impugned order fell in error in stating that simultaneous penalties cannot be imposed on the assessee/appellant for the same case. We are dealing with the period prior to the amendment of provision of Section 78. The decision of Hon'ble Delhi High Court in Bajaj Travels Ltd. (supra) and the Tribunal in Ramawat Construction Co. (supra) cited by the learned AR is squarely applicable to the facts of the present case and as such we hold that the impugned order is legally not sustainable with reference to non-imposition of penalty under Section 76. To that extent, the impugned order is set aside. 8. In view of the above di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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