TMI Blog2018 (11) TMI 926X X X X Extracts X X X X X X X X Extracts X X X X ..... Anil Choudhary, Member (Judicial) And Shri C. L. Mahar, Member (Technical) Rep. by Shri Inderjeet Yadav, Advocate for the appellant. Rep. by Shri G.R. Singh, DR for the respondent. ORDER Per Anil Choudhary: The issue in this appeal is whether the appellant is providing services under the category cargo handling service as defined under Section 65(23) read with Section 65 (105)(zr) of the Finance Act, 1994. 2. The appellant is a partnership firm and is engaged in providing services of packing and loading/unloading of cement into wagons and trucks for the clients. It appeared to Revenue, that during the period prior to 16/06/2005 (March 2003 to 15/06/2005), appellant had provided services to various cement p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce, Indore. Shri Devinder Singh, Partner of the appellant appeared before the authority during investigation wherein his statement was recorded under Section 14 of the Act, wherein he had inter alia stated that they are registered with the Service Tax Department at four places under the category of Manpower Recruitment Agency . In the Rewa Range, registration was taken on 6th July 2005 and they have been paying the tax under the category of Manpower Recruitment Agency since June 2005. He also stated that they have not undertaken cargo handling service as the services rendered by them fall under the category of Manpower Recruitment Agency . They are not providing any machinery, tools, truck, pay loader etc. to the cement plant. They are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... npower. Accordingly, on the amount received from the service receiver for such activity, service tax was demanded as follows: Sr. No. Period Amount Received (Rs.) ST Rate Service Tax(Rs.) Ed. Cess (Rs.) Total (Rs.) 1. March 03 to 13.05.03 845133/- 5% 42257/- - 42257/- 2. 14.05.03 to 9.4.2004 7056858/- 8% 564549/- - 564549/- 3. 10.09.04 to 15.06.05 4582930/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals), who in the impugned order observed that from the terms of agreement, it is obvious that it is the responsibility of supervision of loading activity with the contractors/appellant. Penal charges for delay in loading/unloading, with other benefits of the workmen, are to be taken care by the appellant contactor. The terms and conditions of the relevant contracts establish that the agreement is for loading and unloading of cement and not for manpower recruitment agency service. The payment is also linked to the number of wagons loaded. The appellant is solely responsible to decide the manner of execution of work, without any interference, instructions or intervention by the client. Accordingly, the ld. Commissioner (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r supply services which became taxable w.e.f. 16.06.2005 they were paying tax regularly. He submitted that penalties cannot be sustained as there is no suppression on their part. He therefore prayed for setting aside the impugned order. 11. Ld. AR on behalf of Revenue submitted that activities performed by the appellant would fall under Cargo Handling Services . He submitted that terms conditions of the contract clearly establish that the same are for loading unloading of cement and not for manpower recruitment agency service. He submitted that scope of work indicated in the contract is that of loading unloading of cement . The payment is also linked to number of wagons loaded. He submitted that the appellant is solely responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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