Customs, Excise and Gold Tribunal - Delhi
Jagdeep Singh Saluja vs Cce on 6 December, 2007
Equivalent citations: [2008]13STJ148(CESTAT-NEW DELHI)
ORDER P.K. Das, Member (J)
1. The appellant filed this appeal against imposition of penalty under Section 76, 77 and 78 of the Finance Act, 1994.
2. The relevant facts of the case in brief are that the appellant is a proprietorship concern, engaged in handling and transporting fertilizers of various fertilizer companies. The adjudicating authority confirmed the demand of tax under heading of "Cargo Handling Service" and imposed penalties for late payment of tax and non-filing of the returns. The Commissioner (Appeals) upheld the adjudication order.
3. The learned Counsel on behalf of the appellant submits that appellant is undertaking the activities of loading and unloading of cargo in his individual capacity and, therefore, they are not entitled to pay the tax as stated in Board Circular F. No. B. 11/1/2002-TRU dated 1.8.2002. He further submits the appellant voluntarily paid the tax before issue of show cause notice in order to avoid the legal complicity. Therefore, imposition of penalty is not justified. He relied upon the decision of the Tribunal in the case of SRE Venkateswara Hi-Tech Machinery v. Commissioner of Central Excise, Coimbatore reported in 2007 (6) STR 139 (Tri. Chennai). Learned DR reiterates the findings of the Commissioner (Appeals). He submits that the appellant acted as an agency and, therefore, they are covered under "Cargo Handling Operations".
4. After hearing both the sides and on perusal of the records, I find that there is dispute of applicability of tax under "Cargo Handling Services". Central Board of Excise & Customs vide Circular F. No. B.11/1/2002-TRU dated 1.8.2002 clarified as under:
15. Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency.
5. The appellant did not pay the tax as the appellant is a proprietorship firm and covered by the board circular. In any event, the appellant paid the tax before issue of the show cause notice. Thus, the delay of payment of tax and filing of return are due to interpretation of statutory provisions of law, imposition of penalties are not warranted. Accordingly, imposition of penalty under Section 76, 77 and 78 of the Finance Act, 1994 are set-aside. The appeal is allowed in the above terms.
(Order dictated and pronounced in the open Court)