2015 (7) TMI 1138 - HC - Service Tax

Period of limitation - Demand - cargo handling services - Section 65(23) of the Finance Act, 1994 for the period February, 2003 to April, 2004 - handling of iron and steel materials - Held that - the grounds of appeal before the Tribunal has also not been made available in the typed set of papers so as to enable this Court to entertain the above plea of limitation raised before this Court. That being the case, we do not find any justification to entertain the appeal on the plea that merely because the original order has not invoked the provisions for imposing the penalty, automatically the plea of no tax invoking proviso to Section 73(1) would apply. This plea of the appellant appears to be on a wrong premise, as we find from the order of the Tribunal that what has been agitated is the fact that the nature of services provided by the assessee does not fall within the service tax net, which the original authority, the appellate authority as also the Tribunal, have concurrently held against the appellant holding that the activity performed by the appellant would fall squarely within the provisions of Section 65(23) of Chapter V of Finance Act, 1994, viz., cargo handling services . Therefore, we find no error in the order of the adjudicating authority as confirmed by the appellate authority and further confirmed by the Tribunal. In the absence of material pleading before the competent authority, we are unable to countenance the argument advanced by the appellant in regard to limitation. For the reasons stated above, this court is not inclined to entertain the appeal by framing any questions of law for consideration, as no question of law, much less substantial question of law arises for consideration in this appeal. - Decided against the appellant

Summary

Issues:
1. Whether the proceedings are barred by limitation?
2. Whether the services rendered by the appellant constitute cargo handling services under Section 65(23) of the Finance Act, 1994?

Analysis:
1. The appellant contended that the proceedings were time-barred, invoking the proviso to Section 73(1) of the Finance Act, 1994. However, the court noted that this plea was not raised before the Tribunal. The court found no grounds or justification to entertain the appeal on the basis of limitation as the plea was not presented at the appropriate stage. The court emphasized that the original order did not invoke penalty provisions, and the plea of no tax under Section 73(1) could not automatically apply. The court concluded that the argument on limitation was unfounded, especially since all lower authorities had consistently held that the appellant's activities fell under cargo handling services as per Section 65(23) of the Finance Act, 1994.

2. The Tribunal had ruled that the services provided by the appellant indeed constituted cargo handling services under Section 65(23) of the Finance Act, 1994. The appellant did not dispute this finding but primarily challenged the proceedings on the grounds of limitation. The court upheld the Tribunal's decision, stating that the nature of services fell within the ambit of cargo handling services as defined by the relevant provisions. The court found no error in the orders of the adjudicating authority, the appellate authority, and the Tribunal in categorizing the appellant's activities as falling under cargo handling services. As the appellant failed to provide material to support their claim and as the plea on limitation was not raised in prior stages, the court dismissed the appeal, emphasizing that no substantial question of law arose for consideration.

In conclusion, the High Court dismissed the appeal, ruling against the appellant on both issues raised. The court found no merit in the plea regarding limitation and upheld the lower authorities' decisions that the appellant's services constituted cargo handling services under the Finance Act, 1994. The judgment highlighted the importance of raising relevant arguments at the appropriate stages of the legal process and emphasized the need for substantiated claims to challenge tax assessments effectively.