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TMI Blog2018 (8) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... odown within the mill premises of the company. ii) the contractor shall ensure that it has adequate resources to meet the requirements of the company without engaging any workman beyond eight hours per a day. They undertake loading and unloading of reels/reams/bundles/pallets in trailers/truck in the godown within the mill premises as per the requirement of company from time to time. iii) M/s ITC Ltd., will pay them an amount of Rs. 13.68 per MT. The quantity will be measured on the total dispatches made during the month by day wise stock report. The above rates include all wages to the workmen, profit and other expenses under the Workmen Compensation Act. iv) In addition, M/s ITC Ltd., will reimburse an amount towards the annual leave of the workers as per the eligibility. The appellant have been rendering these services since 17.04.2008 but they had taken a registration of service tax on 13.07.2005 for providing Manpower Supply and Business Auxiliary services. They have not taken any registration for cargo handling services and they have not paid any tax from 01.04.2006 onwards. Further, it is seen from the ST-3 return filed for the half year ending September, 2005 that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of services rendered by the appellant. At the time of obtaining registration under the provisions of service tax, Departmental officers had advised that the services were classifiable under the category of Manpower Recruitment Service and Business Auxiliary Services. They have also paid service tax under these headings; merely because the Revenue now changed its view on the correct classification of the services it would be unfair to allege malafides. i) even otherwise the appellants noticed that all the services rendered by them are within the premises of the factory and no part of the services rendered by the appellant is outside the premises of the factory area as is evident from the agreement itself. The term "cargo" refers to goods which are moved by train or truck, airplane or other carrier etc., as there is no transport of goods there is no cargo handling of the goods within the factory their services cannot be called cargo handling services. It is only material handling within the factory. The show cause notice is based on mere surmises and conjectures and not based on any evidence. The burden of proof is on the Revenue and it has not discharged the same with any co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich, it was held that the labour supply work as assigned by client carried out inside the factory premises does not amount to providing cargo handling services. 4. The Learned Departmental Representative opposed the appeal of the assessee. He further argued that the demand should have been confirmed as per the show cause notice issued by the Commissioner and penalties imposed accordingly. He argued that, the cum tax benefit given by the Commissioner is not correct because during the relevant period the law did not provide for the same. He relied on the following case laws: a) Maharaja Group & Associates [2016 (41) STR 681 (Tri.-Delhi)] in which, it was held that the packing stacking and loading of the cement packed bags into wagons and trucks amounts to providing a cargo handling services. b) J.K. Transport [2006 (2) STR 3 (Tri.- Del.)] in which, the appellant engaged in the contract of loading and unloading Blast furnace granulated slag at the site of M/s ACC Jamul Cement Works, the Tribunal held that it amounts to providing cargo handling service. c) RPG Enterprises Ltd., [2008 (11) STR 488 (Tri. Mum.)] in which, it was held that the service tax to be paid of gross amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patches made during the month by day wise stock report. Thus, it is evident that the goods in question are not meant for movement within the factory or godowns but are meant for dispatches. The primary distinction between the cases relied upon by the assessee and the cases relied upon by the Department is whether the goods moved from the factory or not. If the goods are moved out of the factory or into the factory they meet the definition of "cargo" and the activities of handling it is "cargo handling service". We, therefore, find that the activity under taken by the appellant/assessee must be classified as cargo handling service. Coming to the second question of extended period of limitation, firstly, it is not in dispute that this is a classification issue and the Department had issued the show cause notice in 2008 whereas, the assessee had been paying service tax under various other headings namely Manpower supply and Business Auxiliary Service from 2005 onwards. Thus, the nature of activity undertaken by the assessee is within the knowledge of the Department from 2005-2006 onwards. Under these circumstances, it appears that the Department has changed its opinion regarding the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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