Custom, Excise & Service Tax Tribunal
C.C.E. Bhopal vs M/S. Akash Enterprises on 17 October, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Appeal No. ST/1056/2010-ST(DB)
[Arising out of Order-in-Original No. 25/BPL/2010 dated 173.03.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Bhopal].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Honble Mr. Ashok K Arya, Member (Technical)
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
C.C.E. Bhopal .Applicants
Vs.
M/s. Akash Enterprises .Respondent
Appearance:
Shri Ranjan Khanna, DR for the Applicants Written submissions from the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Mr. Ashok K Arya, Member (Technical) Date of Hearing: 17.10.2016 FINAL ORDER NO. 55106/2016-ST(DB) Per Ashok K Arya:
The Revenue is in appeal against the order in appeal no. 25/BPL/2010 dated 17.03.2010 whereunder the demand of service tax of Rs.4,56,815/- on the ground that the service rendered by the appellant are not classified under cargo handling services, has been dropped.
2. Revenue has been represented by Shri Ranjan Khanna, DR and none appeared for the respondent namely M/s. Akash Enterprises. However, respondent submitted written submissions.
3. Ld. DR submits that the said services are under the category of cargo handling services, therefore, the demand of service tax confirmed by the order in original passed by the Assistant Commissioner is to be sustained.
4. The respondent in the written submissions inter alia mainly states that they are providing only labour and paying service tax under the manpower supply agency service and are not covered under the Cargo handling services. In support the decision in the case of J J Enterprises Vs. CCE 2006 (3) STR 655 (Tri-Del) is cited.
5. We have carefully considered the facts, submissions made by both the sides and the case law cited.
6. In this regard we reproduce the findings given in paras 9 & 10 in the impugned order by the Commissioner (A):
The appellant has taken registration on 18.08.2005 under the category of Man power supply agencys services. Since then the appellant is discharging service tax liability under the said service and filing ST-3 returns. The demand is to the effect that for the period 01.08.2004 to 15.06.2005 i.e. prior to 16.06.2005 the appellant were covered under the category of Cargo Handling Services for which neither any registration was taken nor service tax was discharged. The appellant have come up with a plea that the activities undertaken by them having remained the same i.e. during the period 01.08.2004 to 15.06.2005 and from 16.06.2005 till date, no reasons have been given for the change of classification of services before and from 16.06.2005. At present the appellants services are being accepted as Man power supply agencys services an taxes are being collected under this head. As on date the Cargo handling services are still in existence. No efforts have been made to change the present classification to cargo handling services. Neither the investigators nor the adjudicating authority have given the reasons as to why the impugned services were classifiable under cargo handling before 16.6.2005 and under man power recruitment from 16.06.2005. In the matter of K K Appachan Vs. CCE Palakkad 2007 (7) STR 230 (Tri-Bang.) the Tribunal has held that once the department accepts the fact that the appellants case falls under the category of manpower recruitment agency and collects service tax under the category, they cannot say that during an earlier period they would be coming under cargo handling service. Applying the ratio of this case also, it emerges that the services rendered by the appellant are appropriately classifiable under the category of man power supply agency, both before and from 16.06.2005.
In the facts and circumstances above, the services rendered by the appellant were not classifiable under cargo handling services during the period under reference and consequently the impugned demand is not sustainable. 6.1. Further, Department has not given any additional facts to hold that services rendered by the respondent are under the category of cargo handling services and not under the category of man power recruitment agency service. The CESTAT Delhis decision in the case of J J Enterprises (Supra) also supports the stand of the respondent.
6.2. We are in agreement with the findings of the Commissioner (A). Consequently, the Revenues appeal is without merits and is hereby rejected.
[Operative part of the order pronounced in the open Court] (Ashok K. Arya) (Archana Wadhwa) Member (Technical) Member (Judicial) Bhanu 2 ST/1056/2010-ST(DB)