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2011 (9) TMI 481 - AT - Service TaxCargo Handling Service - Transporting coal from wagons to Thermal Power Station by conveyor belt and not by any means of transportation - held that - In the facts of the case the service rendered by Appellants cannot be considered as Cargo Handling Services , in view of the decisions in the case of S.B. CONSTRUCTION COMPANY (2006 (8) TMI 28 - RAJASTHAN HIGH COURT) and Modi Construction Co. (2008 (6) TMI 22 - CESTAT, KOLKATA). Therefore, the Appellant succeeds on merits.
Issues Involved:
1. Classification of services provided by the Appellant as "Cargo Handling Services." 2. Applicability of service tax on the activities performed within the factory premises. 3. Interpretation of the term "cargo" in the context of the services provided. 4. Time bar and suppression of information by the Appellant. Detailed Analysis: 1. Classification of Services as "Cargo Handling Services": The primary issue was whether the services provided by the Appellant, which included loading cement bags into trucks and railway wagons, internal shifting of goods, and shifting of coal within the factory premises, fall under the definition of "Cargo Handling Services" as per Section 65 (105) (zr) and Section 65 (23) of the Finance Act, 1994. The Appellant argued that their activities did not qualify as "Cargo Handling Services" because the services were performed within the factory premises and involved mechanized processes. They cited the case of S.B. Construction Co. v. Union of India, where the Rajasthan High Court held that services involving mechanized handling within factory premises do not constitute "Cargo Handling Services." The Tribunal agreed with the Appellant, stating that shifting goods within the factory premises is not covered under "Cargo Handling Services," as established in the S.B. Construction Co. case. The Tribunal further noted that the Appellant's activities using conveyor systems do not fall within the definition of "Cargo Handling Service." 2. Applicability of Service Tax on Activities within Factory Premises: The Tribunal examined whether the internal shifting of goods and the mechanized loading process within the factory premises could be subjected to service tax under "Cargo Handling Services." The Tribunal referred to the decision in Modi Construction Co. v. CCE, which supported the view that internal shifting of goods within factory premises does not constitute "Cargo Handling Services." The Tribunal concluded that the Appellant's activities, which involved internal shifting and mechanized processes, were not taxable under this category. 3. Interpretation of the Term "Cargo": The Appellant contended that the term "cargo" implies goods meant for transportation by different modes such as trucks, rail, ships, or aircraft. They argued that goods moved within the factory premises do not qualify as "cargo." The Tribunal agreed with this interpretation, citing the definition of "cargo" from various dictionaries and the decision in S.B. Construction Co., which clarified that "cargo" refers to goods transported by specific modes of transport. The Tribunal concluded that the goods handled by the Appellant within the factory premises do not meet the definition of "cargo." 4. Time Bar and Suppression of Information: The Appellant argued that there was no suppression of information with the intent to evade tax, and therefore, the extended period for issuing a Show Cause Notice under Section 73 of the Finance Act, 1994, should not apply. The Tribunal found merit in the Appellant's argument, noting that the Appellant had a bona fide belief that their services did not fall under "Cargo Handling Services." The Tribunal referenced the decision in Associated Pigments Ltd. v. Supdt. of Central Excise and Pahwa Chemicals (P.) Ltd. v. CCE, which supported the view that extended periods cannot be invoked without evidence of intentional suppression. Conclusion: The Tribunal concluded that the services provided by the Appellant did not qualify as "Cargo Handling Services" and were not taxable under the Finance Act, 1994. The Appellant succeeded on merits and on the issue of time bar. The appeal was allowed with consequential relief.
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