2009 (6) TMI 879 - AT - Service Tax

Summary

Issues Involved:
Waiver of pre-deposit of Service Tax and penalties for providing cargo handling service and business auxiliary service.

Analysis:

1. Issue of Service Tax Liability:
The Applicant sought waiver of pre-deposit of Service Tax amounting to Rs. 13,75,415/- along with penalties. The Revenue contended that the Applicants are liable to pay Service Tax as providers of cargo handling service due to different rates provided for extraction and loading in the contract. However, the Applicants argued that they are engaged in the extraction and transfer of coal, with loading being incidental to their primary job. They relied on a previous decision to support their claim.

2. Interpretation of Contract and Job Undertaken:
The Tribunal analyzed the nature of the contract and the job undertaken by the Applicants. It was observed that the contract primarily involved extraction and transfer of coal, with loading being a consequential aspect of the main job. Citing a previous case, the Tribunal noted that in similar situations, it was held that the assessee was not providing cargo handling service. Consequently, the Tribunal found that the Applicant had established a prima facie case for waiver of pre-deposit of Service Tax and penalty.

3. Decision and Order of the Tribunal:
Considering the arguments presented by both sides and the precedent set by previous cases, the Tribunal ruled in favor of the Applicant. It granted the waiver of pre-deposit of Service Tax and penalties, staying the recovery of the same during the pendency of the Appeal. The Tribunal allowed the Stay Petition, indicating that the Applicant had sufficiently demonstrated that they were not liable to pay Service Tax as cargo handling service providers based on the nature of their job and contract terms.

In conclusion, the judgment by the Appellate Tribunal CESTAT KOLKATA granted the Applicant's request for waiver of pre-deposit of Service Tax and penalties, emphasizing that the loading of coal was incidental to the main job of extraction and transfer, and hence, the Applicant was not considered a provider of cargo handling service.