Custom, Excise & Service Tax Tribunal
C.C. & C.Ex., Meerut I vs Omprakash on 28 March, 2014
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R.K.Puram, New Delhi COURT-I Date of hearing/decision: 28.3..2014 Service Tax Appeal No.276 of 2009 Arising out of the order in appeal No.20-CE/MRT-I/2009 dated 20.2.2009 passed by the Commissioner (Appeals), Customs & Central Excise , Meerut I. For approval and signature: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of 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? 4 Whether Order is to be circulated to the Departmental authorities? C.C. & C.Ex., Meerut I .. Appellant Vs. Omprakash . Respondent
Appearance:
Present Shri Govind Dixit, A.R for appellant /Revenue Present Shri Alok Arora, Advocate for the respondent Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Rakesh Kumar, Technical Member Final Order No. 51285/2014 Per Justice G. Raghuram:
Heard the ld. Authorised Representative for the appellant/Revenue and the ld. Counsel for the respondent/assessee. Revenue has preferred this appeal against the appellate Commissioners order dated 20.2.2009 allowing the assessees appeal and reversing the adjudication order dated 11.6.2008 passed by the Assistant Commissioner, Customs & Central Excise Division, Dehradun.
2. The primary authority confirmed service tax liability of Rs.13,983/-, apart from interest and penalties as specified, on the ground that the assessee had provided cargo handling service defined in Section 65(23) read with Section 65(105)(zr) of the Finance Act, 1994.
3. Proceedings were initiated under the show cause notice dated 6.8.2007 alleging that enquiries by Revenue from M/s Uttam Sugar Mills Ltd., Hardwar District revealed payments having been made by the Sugar Mills to the assessee in respect of loading, unloading and shifiting of sugar from floor of the mill to godowns and from godowns to other godowns or as desired by the employer, for movement or handling of the goods. Nowhere in the show cause notice, either expressly by any implication is there any allegation that the assessee had loaded or unloaded the goods by employing vehicles. Before the primary authority, the assessee did not respond either to the show cause notice nor to notices issued for personal hearing. Therefore the adjudication order was passed on the premise that cargo handling service was provided. The appellate Authority however, following the decisions of this Tribunal which were referred to, concluded that transaction did not amount to cargo handling service, within the ambit of the statutory definition.
4. It requires to be noticed that in several decisions of this Tribunal and of High Courts as well, cargo handling service is explained to necessarily involve loading & unloading and packing or unpacking of cargo. As pointed out by the Rajasthan High Court in S.B. Construction Company vs. UOI 2006 (4) STR 545 (Raj.), Cargo is Goods or Merchandise conveyed in a ship, aeroplane or vehicle.
5. There is no fact asserted in the show cause notice nor is any material adverted to in the primary or appellate orders which legitimizes the assumption that assessee had handled cargo.
6. On the aforesaid analyses, the impugned appellate Authoritys order is impeccable. Therefore Revenues appeal fails. No order as to costs.
(Justice G. Raghuram) President (Rakesh Kumar) Technical Member scd/ 1