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TMI Blog2024 (8) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... he dropping the demand in the impugned order by the ld. adjudicating authority. 1.3. As both the appeals are filed against the common Order-in-Original, they are taken up together for decision by a common order. The demands of Service Tax, Interest and Penalties involved in both the appeals are summarized below: Sl. Appeal Nos. Period ST (including cesses) and penalties. 1 M/s. Sen Brothers' Appeal No. ST/75935/2016 2008-09 to 2012-13 Service Tax-Rs. 2,46,75,336/- Interest- u/s 75, Penalty- Rs.2,51,00,821/-u/s 78 & further Penalty u/s 77. 2 Department's Appeal No.ST/75979/2016. Service Tax-Rs.3,74,75,898/- Interest- u/s 75; Penalty- u/s 78. 2. The appellant-assessee, M/s. Sen Brothers, is a proprietorship firm engaged in providing 'manpower recruitment or supply agency service' and 'construction service'. The appellant-assessee claimed that they rendered manpower supply services to M/s. Durgapur Cement Works (DCW), M/s. Durga High Tech Cement Ltd. (DHTC) all under M/s. Birla Cement Corporation Ltd., by supplying manpower to carry out their job. The appellant-assessee has rendered 'Construction Services' to IIT - Kharagpur, NIT - Durgapur, Durgapur Thermal Powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied out by them and without classifying the service under any particular category of taxable service. They have pointed out that the entire demand in the Notice has been raised under the category of 'Cargo Handling Service'. However, the impugned order discussed the service tax liability of the appellant-assessee on the 'construction service' rendered by them without quantifying the service tax liability on the 'construction service'; it is a settled law that no service tax liability can be fastened on unidentified service. Accordingly, they submit that the demands confirmed in the impugned order are not sustainable on this ground alone. 6.1. In support of this contention, the appellant-assessee relied upon the following decisions: (i) Prakash Road Lines vs. Commissioner Of Central Excise, Customs and Service Tax [2022-TIOL-928-CESTAT-ALL] (ii) Indian Machine Tools Manufacturers Association vs. The Commissioner of Central Excise [2024-TIOL-133-CESTAT-CHD] (iii) R. Enterprise Vs. State of Gujarat [2024-TIOL-803-HC-AHM-ST-Z] 6.2. The appellant-assessee submits that the entire demand has been raised in the Notice on the basis of comparison of the figures a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard, the assessee submits that there is no such allegation in the Show Cause Notice regarding the liability of service tax on the 'construction service' rendered by the assessee to M/s.BIT, Mesra; the Department in its appeal has accepted that the 'Commercial or Industrial Construction Service' provided to IIT, Kharagpur and NIT, Durgapur are exempt, but contended that the same service provided to BIT, Mesra, cannot get the same benefit of exemption under the Notification No. 25/2012-ST, dated 20.06.2012 since it cannot be termed as Government educational Institution. In this regard, the assessee submits that in the entire Show Cause Notice, there is no whisper about the 'Commercial or Industrial Construction Service' provided to BIT, Mesra and thus there was no proposal in the Show Cause Notice for charging service tax in respect of the service provided to BIT, Mesra. Further, it is submitted by the respondent-assessee that the ld. adjudicating Commissioner has not held that the 'Commercial or Industrial Construction Service' provided to BIT, Mesra is not eligible for the exemption. Thus, in the facts and circumstances of the case, they submit that the Department's appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cannot just rely on figures culled from Income Tax Returns, 26AS Statement, balance sheet, profit and loss account etc. The impugned order has seriously erred in confirming the duty liability simply on the basis of the figures obtained from documents like Income Tax Returns etc. without causing a bare minimum enquiry with all the concerned parties......................................." [Emphasis supplied] 11.2. We also observe that in the case of M/s. Indian Machine Tools Manufacturers Association Vs. The Commissioner of Central Excise [2024-TIOL-133-CESTAT-CHD], it has been held as under: "11. Coming to third and final issue as to whether any demand can be sustained on the basis of difference between the figures of ST-3 Returns and the balance sheets,we find that it is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such evidence of the service recipient and the service provided, service tax cannot be demanded and confirmed. For this reason, we are of the considered opinion that it is not open for the Department to raise dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial to the finding of the case : "Maihar Cement is having a completely automatic plant, from the stage of production of cement up to its delivery. Packed Cement bags automatically move on conveyer belt for loading into trucks or wagons. Labourers are required to keep watch on production, packing & delivery of cement and arranging the bags systematically in trucks and wagons. They are not required to carry or load the cement manually in truck/wagons. The bags are simply pushed for storage. These type of activities are not covered under the activity of Cargo Handling Services, as held by the Tribunal in the matter of M/s. J. & J. Enterprises v. CCE- 2006 (3) S.T.R. 655 (Tri.-Del.)". 6. Ld. Commissioner (Appeals) also observed that he had seen, through CD provided by the respondent, the actual process of packing and loading in the cement factory. He noted that all these activities are done automatically by machinery and conveyor owned by the cement manufacturer. The manpower supplied by the respondent is for mainly supervising and supplementing the mechanised packing and loading. We are in agreement with the reasoning and findings of the ld. Commissioner (Appeals). 7. Further, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs out of the factory. This work was, in fact, been performed by the automatic machines. It is through these automatic machines, the cement bags were loaded, unloaded, packed or unpacked and this included Cargo Handling Services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. 10. On the reading of the aforesaid contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court has rightly concluded that the aforesaid services would not fall within the definition of "Cargo Handling Services‟. [ Emphasis supplied ] 10. The facts in the present case are identical. Therefore, we do not see any necessity to take a different view. Respectfully following the cited case law, we allow the Appeals on merits." 12.1. Following the decision of this Tribunal mentioned supra, we hold that the activity of supply of manpower for loading of cement in trucks a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also observe that the ld. adjudicating authority has imposed various penalties under Sections 77(1)(a), 77(1)(b) and 77(1)(c) of the Finance Act, 1994 as well as Rule 7C of the Service Tax Rules, 1994 as the assessee have failed to take registration and not filed returns in respect of the services rendered. As the services rendered by the assessee have been held to be not liable to Service Tax under the category of 'cargo handling service', we hold that no penalty is imposable under Sections 77(1)(a), 77(1)(b) and 77(1)(c) and Rule 7C ibid. 14. In view of the above, we set aside the impugned order and allow the appeal filed by the appellant-assessee. 15. Regarding the appeal filed by the Revenue, it is observed that the Revenue has mainly filed the said appeal against extending the benefit of Notification No. 25/2012-S.T. dated 20.06.2012 for the construction services rendered to M/s. Birla Institute of Technology (BIT), Mesra, as it is a commercial concern. 15.1. We observe that the Show Cause Notice has demanded Service Tax only under the category of 'cargo handling service'; there is no demand of Service Tax under the category of 'construction service'. Further, we take not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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