TMI Blog2008 (6) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that the services provided by all the appellants were "Cargo handing service" in all these 7 appeals. Revenue is the Respondent. Interest was also levied. Service Tax Appeal Case No. Impugned order No. Date Period Service Tax Imposed Penalty Imposed GAJANAND AGARWAL 18/06 7-8/ST/B-II/06 dated 27-1-2006 16-8-2002 to 30-6-2004 Rs. 11,41,020 u/s 68 73. (Rs.3,35,393/- for the period 16-8-2002 to 13-5-2003 and Rs. 8,05,627/- for the period 14-5-2003 to 30-6-2004) Rs.1.00 lakhs u/s 75A, 76. 77 78. 19/96 7-8/ST/B-II/06 dated 27-1-2006 1-7-2004 to 16-9-2004 Rs. 1,41,884/- u/s 73 Rs. 40,000/- u/s 76 Rs. 1,000/- u/s 77 41/06 (Revision Order u/s 84) 3/ST/Commr/BBSR-II/2006 dated 7-6-2006 16-8-2002 to 30-6-2004 NIL Rs, 11,41,020/- COAL CARRIERS 14 / 06 2-3 /ST/B-II/ 06 dated 24-1-06 16-8-2002 to 30-6-2006 Rs.17,50,030/- u/s 65 73. Rs. 500/- u/s 75A Rs. 1.00 lakh u/s 77 15/06 2-3/ST/B-II/06 dated 24-1-06 1-7-2004 to 31-3-2005 Rs. 1,53,990/- u/s 73 Rs. 40,000/- u/s 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of the nature of the activity carried out by the appellant, the ld. Appellate Authority agreed with the learned adjudicating authority and held that the job was inclusive of work like prompt loading of the wagons as soon as they were placed, expenditure towards labour wages etc. were incurred for the service provided and there was no hiring of the pay loaders but there was service rendered by the appellant with the aid of pay loaders. These activities brought the appellant to the category of "cargo handling agency service". The appellants also sought registration for such activity under the law under the category "Cargo handling service" and consequent upon seeking registration, the appellants have also deposited service tax under the category "cargo handling services". 5. So far as the second issue is concerned, the learned Appellate authority held that the activities carried out by the Appellants brought the appellant to the ambit of tax and penalty was leviable for violation of law. So far as the third issue on limitation is concerned, the ld. Appellate authority held that suppression of fact by the appellants rendered the proceeding not time-barred. 6. Ld. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Marketing Co. of India Ltd. V. ASCT - 1980 (6) E.L.T. 295 (S.C.) = 4SCST 4109 (S.C.) (x) Hindustan Steel Ltd. v. State of Orissa - 1978 (2) E.L.T. (J159) (S.C.) (xi) Sainik Mining Allied Services Ltd. v. CCE - 2008 (9) S.T.R, 531 (Tri.-Kol.) (xii) ITW India Ltd. v. CCE - 2007 (8) S.T.R. 490 (Tri.-Kol.) (xiii) CCE v. Chellapandi Match Works - 2006 (197) E.L.T. 272 (Tri.-Che.) (xiv) CCE v. L.M.L. Ltd. (Scooter Division) - 2002 (143) E.L.T. 431 (LB). 9. With the support of the aforesaid citations, he mainly argued that neither the work order nor the agreement provided any support to the Revenue for taxing the appellant in view of the nature of activity being letting out of loading machine. The proceedings initiated were also time-barred when the Department was aware of the activities of the appellant. Levy of penalty was unwarranted since there was no defiance of law made deliberately by the appellant. 10. Shri Loni appearing for Revenue submitted that the appeal orders were properly passed since adjudications were done on the basis of material gathered by Revenue. The cases involve proved suppression of fact and non payment of se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the impugned orders be set aside exonerating the Appellants from the liability of tax as well as penalty does not sound well at all. 13. Learned Advocate specifically argued that in view of decision of this Bench in the case of M/s. Sainik Mining Allied Services Ltd. v. CCE, C ST., BBSR - 2008 (9) S.T.R. 531 (Tri.-Kolkata) and CCE, C ST, BBSR-II v. M/s. Vinshree Coal Carriers Pvt. Ltd. - 2008 (10) S,T.R..473 (Tri.-Kolkata), the Appellant shall not be at all liable for similar nature of activity carried out as that was in these two cases. Therefore the order of adjudication may be set aside. This does not appeal us for cargo handling done by the Appellant coupled with other contractual obligation of making pay loader available to perform the contract while in cited cases movement of goods within mining area was subject matter and those were only transportation. 14. We had an occasion to deal with the meaning of 'cargo handling service' in an appeal much earlier to this i.e. in the case of I.T.W. India Ltd. v. Commissioner of C. Ex. Cus, Bhubaneswar - 2007 (8) S.T.R. 490 (Tri-Kol). Section 65(105)(zr) of the Act declared cargo handling service to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re contemplated to be taxed as cargo handling service are: (1) By express terms: (A) Loading, unloading, packing or unpacking of cargo; (2) By inclusive terms: (B) Handling service relating to cargo: (i) Provided for freight in special containers or for non-containerised freight; (ii) Provided by a container freight terminal or, by any other freight terminal; and (3) Cargo handling service provided which is incidental to freight. 16. What that appears to be necessity of law for taxation under the class cargo handling service is that the service provided should be relating to or in relation to cargo handling by a cargo handling agency. The service provided should be integrally or inseparably connected with handling of cargo or attributable thereto without being a mere activity of transportation of such cargo since transport service independent of cargo handling is an exception under the scheme of levy by Section 65(23) of the Act. Thus it can be said that loading, unloading, packing or unpacking of cargo and handling of cargo for freight in special containers or non-containerized freight and service provided by container freight terminal or other freight terminal f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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