2014 (2) TMI 94 - AT - Service Tax

Review of order - Order to make pre deposit - Demand under Cargo Handling - Held that - Whether the appellant was un-loading and loading to the wagons and rendered a taxable service is a matter to be determined in the substantive appeal. Since a reasoned order was passed, re-consideration of the same on the ground that the several facts mentioned in the Show Cause Notice were not considered properly by the Tribunal, is an invitation to review. There is no merit in the application as there is no jurisdictional or an error apparent on the record discernable - Since assessee failed to make pre deposit - Appeal rejected.

Summary

Issues:
1. Review of order directing deposit of Rs. 40 Lakh within eight weeks.
2. Liability to pay service tax for rendering 'Cargo Handling' service.
3. Consideration of facts in Show Cause Notice by the Tribunal.

Analysis:
1. The appellant filed a Miscellaneous Application seeking a review of the order dated 12.12.2012, which directed the deposit of Rs. 40 Lakh within eight weeks. The appellant was assessed to service tax, interest, and penalty for rendering a taxable service of 'Cargo Handling'. The Tribunal had granted interim waiver of pre-deposit and stay based on a judgment of the High Court of Orissa. The appellant argued that they were not liable to pay service tax as they were only transporting coal within the mining area and the loading/unloading work was part of coal transportation. The Tribunal found no merit in the application as there was no jurisdictional error apparent on the record. The Tribunal emphasized that the substantive appeal would determine whether the loading/unloading activities constituted a taxable service.

2. The Tribunal's order dated 12.12.2012 mandated the petitioner to deposit Rs. 40 Lakh as a prerequisite for the waiver of pre-deposit and stay of the Adjudicated amount. However, the petitioner failed to comply with this condition. Consequently, the appeal for a review of the order directing the deposit was rejected.

3. The Tribunal highlighted that the review application was based on the contention that several facts mentioned in the Show Cause Notice were not adequately considered by the Tribunal in its reasoned order. The Tribunal reiterated that the consideration of whether the appellant's activities constituted a taxable service would be addressed in the substantive appeal. Therefore, seeking a review based on the alleged oversight of facts in the Show Cause Notice was deemed unwarranted. The Tribunal concluded that there was no justification for reconsideration as there was no discernible jurisdictional error or evident mistake on the record.

This comprehensive analysis of the judgment addresses the issues of the review of the deposit order, the liability to pay service tax for 'Cargo Handling' service, and the consideration of facts in the Show Cause Notice by the Tribunal, providing a detailed insight into the legal reasoning and decision-making process.