Custom, Excise & Service Tax Tribunal
C.C.E. Indore vs M/S. B L Arora H & T Contractor on 19 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Cross Application No. ST/CROSS/121/2011
Appeal No. ST/663/2010-CU(DB)
[Arising out of Order-in-Appeal No. IND-I/50/2010 dated 25.02.2010, by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Indore].
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Honble Shri V. Padmanabhan, 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. Indore .Applicants
Vs.
M/s. B L Arora H & T Contractor .Respondent
Appearance:
Shri Govind Dixit, DR for the Applicants Ms. Surabhi Sinha, Advocate for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Honble Shri V. Padmanabhan, Member (Technical) Date of Hearing: 09.08.2016 Date of Pronouncement: 19.09.2016 FINAL ORDER NO. 53638/2016-CU(DB) Per Archana Wadhwa:
Being aggrieved with the order passed by the Commissioner (A) vide which he has allowed the assessees appeal, revenue has filed the present appeal.
2. We have heard Shri Govind Dixit, Ld. DR appearing for the Revenue and Ms. Surabhi Sinha, Ld. Advocate for the Respondent.
3. As per the facts on record M/s. B.L. Arora, H&T Contractor entered into a work order / contract with M/s. NFL for bagging of urea and loading the same in wagons and trucks in the bagging plant. They were registered with the service tax department under the category of man power supply services w.e.f. 16.06.2005 and were discharging their service tax liability accordingly.
4. However, the Revenue entertained the view that services being provided by the assessee are covered under the category of cargo handling services, which become taxable from 16.08.2002 and as such the assessee is required to discharge the service tax liability from 16.08.2002. Accordingly, they were issued a show cause notice dated 10.10.2007 proposing to confirm the service tax of Rs.26,40,495/- along with education cess of Rs.41,465/-. The notice also proposed confirmation of interest and imposition of penalty. The said show cause notice culminated into an order passed by the Additional Commissioner confirming demand as also imposing penalties.
5. On appeal against the above order Commissioner (A) took into consideration the precedent decision of the Tribunal and observed that contract for filling empty bags, weighing and stitching the same and loading the bags into wagons / trucks standing in the factory itself or stacking the same on working platform godown would not amount to cargo handling agency services and the same would be correctly falling under packing services or man power supply services which were introduced to service tax net on 16.06.2005 and the appellant have been discharging their service tax liability from the said date onwards. Accordingly, he set aside the order of the original authority.
Hence the present appeal by the Revenue.
6. After carefully considering the submissions made by both the sides and after going through the impugned orders we note that the appellant authority has scrutinized the contract between assessee and M/s. NFL and has taken into account the boards clarification also issued vide F. No. B-11/1/2002-TRU dated 01.08.2002 clarifying that if someone hires labour / labourers for loading and unloading of goods in their individual capacity, such activities will not come under the purview of service tax as a cargo handling services.
7. We also note that the identical issue have been the subject matter of the Tribunals decision in the case of Renu Singh & Co. Vs. CCE Hyderabad-2007 (7) STR 397 (Tri-Bang.) as also in the case of J&J Enterprises Vs. CCE Raipur-2006 (3) STR 655 (Tri-Del). Further, Tribunal in the case of K K Appachan Vs. CCE Palakkad-2007 (7) STR 230 (Tri-Bang.) has also held that the identical services will not get covered under the cargo handling services. The Appellate authority have also taken note of Tribunals decision in the case of ITW India Ltd. Vs. CCE Hyderabad-2009 (14) STR 826 (Tri-Bang.) which has observed as under:
Packaging activity is the part and parcel of the manufacturing activity hence such packing activity do not fall under the category of Cargo Handling Service. Moreover, it is observed by the Tribunal that after packing the appellant was not handling the transportation. Hence their activity is not the Cargo Handling Service as together with packing the transportation activity was not undertaken.
8. Revenue has not given us any justifiable reasons to take a view different than the one adopted by the Tribunal in the above referred precedent decision or the one taken by the Commissioner (A).
9. As such we are of the view that the issue on merits is covered by the precedent decision of the Tribunal and as such no infirmity can be found in the impugned order of Commissioner (A).
10. Apart from the above we also note that the respondent got themselves registered with the service tax department w.e.f. 16.06.2005 under the category of man power supply agency and were discharging their duty liability accordingly. As such the assessees activity were fully in the knowledge of the Revenue, in which case delayed issuance of the show cause notice in the year 2007 is not justifyed at all. No suppression or malafide with an intent to evade payment of duty can be attributed to the assessee.
11. As such we are of the view that the respondent also have a good case on limitation though Commissioner (A) has decided the matter only on merits.
12. In view of the above discussion no merits are found in the Revenue appeal. The same is accordingly rejected.
[Pronounced in the open Court on 19.09.2016]
(V. Padmanabhan) (Archana Wadhwa)
Member (Technical) Member (Judicial)
Bhanu
5
ST/663/2010