TMI Blog2021 (1) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... ESTAT KOLKATA] , has held that the assessee is entitled to exemption under Notification no. 8/2005 dated 01.03.2005. Cargo Handling services - shifting, transportation, loading and unloading from one p lace to another inside the steel plant of the client itself - HELD THAT:- The Tribunal in their own case M/S FERRO SCRAP NIGAM LIMITED VERSUS CCE, RAIPUR AND VICE-VERSA [ 2014 (1) TMI 1051 - CESTAT NEW DELHI] where it was held that service of shifting, transportation or raw materials, waste materials, and finished products from one place to another, inside the plant itself, does not fall under the taxing category of Cargo Handling Services. T he demand raised vide the impugned adjudication order cannot be sustained and hence, the same is set aside - Appeal allowed - decided in favor of appellant. - Service Tax Appeal Nos.37 & 44/2010 - FINAL ORDER NO.75013-75014/2021 - Dated:- 19-1-2021 - SHRI P. K. CHOUDHARY, JUDICIAL MEMBER AND SHRI P. ANJANI KUMAR, TECHNICAL MEMBER Shri D.Halder, Authorized Representative for the Respondent Shri Rahul Tangri, Advocate for the Appellant ORDER The appeals filed by the assessee and the Revenue are being taken up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts. With regard to the demand under BAS for the period prior to 16.06.2005, the demand raised under the category of BAS has already been set aside by the Principal Bench at New Delhi in their case reported as Ferro Scrap Nigam Ltd vs. CCE, Raipur 2014 (1) TMI 1049 CESTAT New Delhi as well as in the case of Auto Coats vs. CCE, Coimbatore 2009 (15) STR 398 (Tri-Chennai). For the period after 16.06.2005, he submitted that the processing services are held to be exempted in terms of Notification No.08/2005-ST as held by the Tribunal reported as Ferro Scrap Nigam Ltd vs. CCE, Ranchi 2019 (2) TMI 766 CESTAT-Kolkata. With regard to the demand raised under CHS, he submitted that the activity of shifting, transportation, loading and unloading within the plant is not taxable as has been held in their case, reported as Ferro Scrap Nigam Ltd vs. CCE, Raipur 2014 (1) TMI 1051 CESTAT, New Delhi as well as in the case of Modi Constructions Co. vs. CCE Ranchi 2008 (12) STR 34 (Tri-Kol) as affirmed by the Hon ble Jharkhand High Court reported in 2011 (23) STR 6 (Jhar), as well as in other cases. He also contested the imposition of penalty in absence of any fraud or suppression and also the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove reproduced definition of BAS a service provider has to produce the goods on behalf of the client. As such two criterias are required to be satisfied before an activity can be brought under the service tax net falling under the above category. The first criteria relates to the production of goods and the second relates to the fact that such production has to be on behalf of the client .................... 8. Having appreciated the submissions made by both the sides, we first of all note that there is no dispute on the detailed activity undertaken by the appellant vide which they separate the iron metal from the molten slag. As such we do not feel the need of referring the same, as the dispute does not revolves around the said activity, but relates to as to whether the said activity can be called as production of goods and further on behalf of the client . As regards the expression production of goods , we note that the same was amended in June 2005 and was substituted by the expression - processing of goods. As such it is clear that prior to the amendment and in the absence of the words processing the same has to be interpreted in a manner that the activity re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that only such activities would be liable to service tax which do not amount to manufacture under Central Excise Law would, however, continue. 24.2 A point was raised whether production of goods on behalf of the client covers situations where the service provider undertakes job work for the client. In view of the amendment, production or processing (not amounting to manufacture) done either for the client or on behalf of the client would be liable to service tax . 10. Apart from the above circulars of the Board there are decisions of the Tribunal settling the issue at rest. In the case of Auto Coats - 2009 (15) S.T.R. 398 (Tri.-Chen.) it stands held that prior to 16-6-2005 unless a person was engaged by another for processing the goods entrusted by a third person, such activity would not be exigible to service tax. Similarly in the case of Sonic Watches Ltd. - 2011 (21) S.T.R. 34 (Tri.) it was held as under : 5. We find that activity undertaken by the appellants in this case was similar to the one as existed in the case of Auto Coats. Therefore, in the light of above two decisions discussed above, it cannot be said that appellants have undertaken job work on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. When we consider the definition in sub-clause (v) of Section 65(19) for the period prior to and subsequent to 16-6-2005, we note that for the later period, the definition has included processing of goods in addition to production of goods. The claim of the appellant is that the liability of service tax would stand extinguished through the Notification No. 8/2005-S.T., dated 1-3-2005. The lower appellate authority has denied the benefit of the said exemption to the appellant. For ready reference, we reproduce below the Notification No. 8/2005-S.T. ibid : In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service of [production or processing of goods for, or on behalf of, the client] referred in sub-clause (v) of clause (19) of Section 65 of the said Finance Act, from the whole of service tax leviable thereon under Section 66 of the said Finance Act : Provided that the said exemption shall apply only in cases where such goods are produced [or proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled to the benefit of Notification No. 8/2005, dated 1-3-2005. Consequently, we set aside the demand for service tax made in the impugned order and allow the appeal. 9. With regard to the demand raised on shifting, transportation, loading and unloading from one place to another inside the steel plant of the client itself, the Tribunal in their own case as reported in 2014 (1) TMI 1051- CESTAT-New Delhi has observed that :- 7. In any case, we have seen the decision of the Tribunal as upheld by Hon ble High Court in the case of Modi Construction Co. vs. CCE, Ranchi (supra), it stands clearly held by the Tribunal that service of shifting, transportation or raw materials, waste materials, and finished products from one place to another, inside the plant itself, does not fall under the taxing category of Cargo Handling Services. The activities undertaken by the appellant are admittedly within the plant itself. As such, we find that the ratio of the law declared by he Tribunal in the above referred matter, which also stands upheld by the Hon ble Jharkhand High Court, is fully applicable to the facts of this case. 10. In view of the aforesaid, the issue is no longer res-int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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