Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Customs & ... vs M/S Minerals Management Service ... on 21 April, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, EAST REGIONAL BENCH : KOLKATA
S.T. Appeal No.22/09
Arising out of O/O No.CCE/BBSR II/S.Tax/No.15-Commissioner/2008 dated 4.12.2008 passed by Commr. of Central Excise, Customs & Service Tax, BBSR II.
For approval and signature:
SHRI S. S. KANG, HONBLE VICE PRESIDENT
SHRI P. R. CHANDRASEKHARAN, HONBLE TECHNICAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
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 His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
Commr. of Central Excise, Customs & Service Tax, BBSR II.
APPELLANT(S)
VERSUS
M/s Minerals Management Service (India) Pvt. Ltd.
RESPONDENT (S)
APPEARANCE Shri B. B. Agarwal, Jt. CDR for the Department Shri Ravi Raghavan, Advocate for the Respondent (s) CORAM:
SHRI S. S. KANG, HONBLE VICE PRESIDENT SHRI P. R. CHANDRASEKHARAN, HONBLE TECHNICAL MEMBER Date of hearing & decision : 21. 04. 2011 ORDER NO.. Per Shri S.S.Kang :
Heard both sides. The Revenue filed this appeal against the adjudication order passed by the Commissioner of Central Excise, Customs & Service Tax.
2. We find that a show-cause notice was issued to the respondents demanding service tax on the ground that the respondents are providing site formation and clearance, excavation and earth moving and demolition services. The respondents filed to reply to the show-cause notice and the adjudicating authority after going through the Contract dated 30th May, 2005 held that the appellants are providing mining services which come under the purview of service tax w.e.f. 1.6.2007 and in the present case, the demand is prior to this period, hence, dropped the proceeding.
3. The Revenue filed this appeal and wants to impose a service tax on the present respondents as provider of cargo handling services.
4. We find that the show-cause notice was issued demanding service tax classifying their services as site formation and clearance, excavation and earth moving and demolition services. Therefore, as the appeal demanding service tax by treating the respondent as a provider of cargo handling service being the new grounds is beyond the show-cause notice. We find that the Revenue cannot make out a new case at the appellate stage. The Honble Supreme Court in the case of Warner Hindustan Ltd. Vs. Collector of Central Excise, Hyderabad reported in 1999 (113) ELT 24 (SC), held that the Revenue can not make out a new case at Tribunal stage and it is not permissible for the Tribunal to consider a case laid for the first time in appeal. In view of the above decision, we find no merit in the appeal and the same is dismissed.
(Dictated and pronounced in the open Court)
Sd/
Sd/
(P. R. CHANDRASEKHARAN) ( S. S. KANG )
TECHNICAL MEMBER VICE PRESIDENT
mm
3
S.T. Appeal No.22/09