Custom, Excise & Service Tax Tribunal
M/S. Kalpataru Transport Co vs C.C.E. Bhopal on 23 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/1162/2010-ST(SM)
[Arising out of Order-in-Appeal No. 60/BPL/2010 dated 04.05.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Bhopal].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Kalpataru Transport Co. .Applicants
Vs.
C.C.E. Bhopal .Respondent
Appearance:
Shri Sanjay Grover, Advocate for the Applicants Shri H.C. Saini, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Date of Hearing: 23.09.2016 FINAL ORDER NO. 54025/2016-ST(SM) Per Archana Wadhwa:
The demand of service tax to the extent of Rs.78,969/- stands confirmed against the appellant for the period October 2002 to March 2003 under the category of cargo handling services. The service provided by the appellant for transporting fly ash in closed trucks after liasoning loading port and unloading of the same at the factory site has been held to be falling under cargo handling services.
2. I find that the show cause notice was issued on 16.04.2008 and as such a part of the demand is even beyond the period of five years provided under the law. In an identical case of Jai Jawan Coal Carriers Pvt. Ltd. Vs. CCE New Delhi-2015 (37) STR 509 (Tri-Del), it has been observed as under:
Next comes, the question of limitation. The show cause notice dated 23/4/09 is for the period from October 2003 to March 2008 and this demand has been confirmed by invoking extended period while the second show cause notice dated 15/10/09 being for 2008-2009 period is within time. During the period of dispute, there were conflicting decisions on the issue involved in as much as in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. vs. CCE, Customs and Service Tax, Bhubneshwar (supra), in respect of similar activity, the Tribunal had taken the view that the same is not taxable as cargo handling service while in the case of CCE, Raipur vs. Gayatri Carriers Pvt. Ltd. (supra) and Gajanand Agarwal vs. CCE, BBSR (supra), the Tribunal in respect of similar activity had taken a contrary view. In view of this, keeping in view the Apex courts judgment in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh I (supra), the non-payment of service tax has to be treated on account of bonafide belief of the appellant that their activity was not taxable and accordingly the longer limitation period under proviso to Section 73 (1) of the Finance Act, 1994 would not be available to the Department. In view of this, the duty demand in respect of the value of service for loading of coal/mineral ore into the tipper trucks and thereafter loading of the coal/ore into the railway wagons would survive only for the normal limitation period which has to be quantified by the original Adjudicating Authority.
3. To the similar effect are other decisions of the Tribunal to which my attention stands drawn. Otherwise also, the lower authorities have not referred to any positive evidence on record to show that the appellant indulged in any malafide activities with an intent to evade payment of duty. In such a scenario the demand raised beyond the period of limitation is not sustainable.
4. In as much as the entire demand is beyond limitation, I find no merits in the impugned orders. The same are accordingly set aisde and appeal allowed with consequential relief to the appellant.
[Dictated and Pronounced in the open Court (Archana Wadhwa) Member (Judicial) Bhanu 2 ST/1162/2010-ST(SM)