TMI Blog2019 (6) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... of Cargo Handling Service . Appeal allowed - decided in favor of appellant. - S.T. Appeal No.312/09 - FINAL ORDER NO.75439/2019 - Dated:- 14-3-2019 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) And SHRI V. PADMANABHAN, MEMBER (TECHNICAL) S/Shri Kartik Kurmy Rajesh Sharma, both Advocates for the Appellants(s) Shri S. Mukhopadhyay, Supdt. (AR) for the Revenue ORDER Per Shri V. Padmanabhan : The present appeal is against the Order-in-Appeal No.36/ST/BBSR II/2009 dated 15.09.2009. 2. The appellant carried out the job of mechanical transfer of coal AT railway sidings into wagons for M/s Mahanadi Coalfields Ltd (MCL), Burla and M/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon ble Supreme Court in the case of Deputy Commissioner, Central Excise and Another Vs. Sushil and Company in Civil Appeal No.3106 of 2008 decided on 13.04.2016. As such, he submitted that the demand for service tax is not justified. (ii) He also submitted that the Department was not justified in invoking extended period of limitation under Section 73 for demanding the service tax. He pointed out that the present issue was within the knowledge of the Department in as much as on identical grounds, by invoking extended period of limitation, earlier show-cause notice has already been served upon the appellant. In this connection, he draws our attention to the show-cause notices dated 03.12.2004, 04.02.2005 as well as 07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able for payment of service tax. From the work orders received by the appellant, the nature of work is described as Hiring of pay loaders for mechanical transfer of finished coal from Railway siding inside mines into Railway Wagons . 8. We note that the classification of the identical activity in respect of coal mines, have been the subject matter of several decisions. In the case of Gajanand Agarwal (supra), the Tribunal has taken the view that the activity of loading of coal into Railway wagons for onward transportation of coal to the area outside the mines, will be liable for payment of service tax under the category of Cargo Handling Service . The Tribunal observed as follows : 17. It was noticed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so extended with the following observations : 8. By following the decision, we uphold the levy of service tax on merit but restrict such levy to the normal time limit. Keeping in view the fact that the levy of service tax under Cargo Handling Service was in its infancy during the disputed period. By following the same decision, we also waive penalties under various sections of the Finance Act by taking recourse to Section 80 of the Finance Act, 1994. 10. In addition to the above, we also note that the issue of limitation, also stands settled in favour of the appellant by the decision of the Hon ble Supreme Court in the case of Nizam Sugar Factory (supra). 11. Since no demand survives wit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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