2011 (5) TMI 612 - AT - Service Tax

Cargo handling service - Demand - Scrutiny - Held that - Circular No. 11/1/2002-TRU dated 1/8/2002 gives an impression that an individual providing cargo handling service would not be covered under the service tax, thus since the appellant being proprietorship concern being an individual, according to the above-mentioned circular of the Board were under impression that they were not liable to pay the service tax. As in JCB INDIA LTD. Versus CST, DELHI 2008 (8) TMI 65 - CESTAT NEW DELHI Tribunal has set aside the penalty on the individuals/ proprietorship concerns providing cargo handling service. Thus there was justification for invoking Section 80 and waiving the penalty imposed on the appellant under Section 75A, 76, 77 and 78 of the Finance Act - in favour of assessee.

Issues:
Service tax liability for cargo handling service, imposition of penalties under various sections of the Finance Act, applicability of Circular No. 11/1/2002-TRU, invocation of Section 80 of the Finance Act.

Service Tax Liability for Cargo Handling Service:
The appellant, a proprietorship concern providing loading services, was alleged to be liable for service tax under the category of "cargo handling service." The dispute arose when the appellant failed to pay the service tax, which was later detected during a scrutiny of records. The Assistant Commissioner confirmed the service tax demand, interest, and penalties under different sections of the Finance Act. The appellant contended that there was doubt regarding the tax liability during the disputed period, citing Circular No. 11/1/2002-TRU, which clarified that individuals providing cargo handling services may not be liable for service tax. The Tribunal considered this argument and previous judgments where penalties on individuals providing cargo handling services were set aside, leading to the conclusion that the appellant was not liable for the penalties imposed.

Imposition of Penalties under Various Sections of the Finance Act:
The Assistant Commissioner imposed penalties on the appellant under Sections 76, 77, 75A, and 78 of the Finance Act, in addition to confirming the service tax demand. The appellant argued that they had paid the entire service tax amount along with interest and that their non-payment was due to confusion regarding their tax liability based on the circular issued by the Board. The Tribunal considered the appellant's plea, along with previous judgments where penalties on similar entities were waived, and concluded that the penalties imposed on the appellant were not justified in light of the circular and relevant legal precedents.

Applicability of Circular No. 11/1/2002-TRU:
The appellant relied on Circular No. 11/1/2002-TRU, which clarified that individuals providing cargo handling services may not be liable for service tax. The Tribunal acknowledged the appellant's reliance on this circular and noted that similar judgments had set aside penalties on individuals providing cargo handling services. Considering the circular and legal precedents, the Tribunal found that the appellant's confusion regarding their tax liability was justified, leading to the setting aside of the penalties imposed on them.

Invocation of Section 80 of the Finance Act:
The appellant sought the invocation of Section 80 of the Finance Act for waiving the penalties imposed on them. The Tribunal, after considering the appellant's arguments, the circular, and relevant legal precedents, found merit in the appellant's plea. In light of the circular's clarification and previous judgments setting aside penalties on similar entities, the Tribunal set aside the penalties imposed on the appellant under Sections 75A, 76, 77, and 78 of the Finance Act. The appeal was allowed in favor of the appellant.

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