2012 (4) TMI 503 - AT - Central Excise

Penalty u/s 78 - Loading and unloading of washed coal as well as rejected coal - Business Auxilliary service - Held that - Rajasthan High Court in S.B. Construction Corporation v. CCE - 2006 (8) TMI 28 - HIGH COURT OF JUDICATURE FOR RAJASTHAN (JODHPUR) ruling that goods when moved within a factory cannot be considered as cargo. This is applicable for shifting of goods within mines also. Further the scope of the entry for cargo handling service was under dispute in the case of many assessees and there was bona fide reason for the Respondent to believe that such tax was not payable. A large number of decisions of the Tribunal in favour of assessees similarly situated as the present Respondent also supports the case of Respondent. At this stage the Respondent is not challenging the tax amount confirmed. The appeal filed by Revenue praying for imposition of penalty only is under consideration - this is a fit case for waiver of penalty invoking provisions under Section 80 of the Finance Act 1994 - Decided against Revenue.

Summary

Issues:
Whether service tax is applicable on loading and unloading charges of coal within mines?
Whether penalty under Section 78 of the Finance Act should have been imposed on the Respondents?

Analysis:
1. The case involved the question of whether service tax should be levied on the loading and unloading charges of coal within mines. The Respondents were engaged in providing services related to coal beneficiation and washing, registered under 'business auxiliary services.' The Revenue contended that service tax should be imposed on the loading and unloading charges of coal received by the Respondents. A Show Cause Notice was issued for demanding service tax for a specific period, which was adjudicated in favor of the Revenue, leading to a penalty imposition on the Respondents.

2. The Revenue appealed against the order of the Commissioner (Appeals) who had waived the penalty under Section 80 of the Act. The Revenue argued that the penalty should have been imposed under Section 78 due to suppression of facts by the Respondents. The Commissioner (Appeals) was criticized for not providing sufficient reasons for waiving the penalty under Section 80 of the Finance Act.

3. The Respondents contended that the loading and unloading activities were confined to the mines and did not involve transportation of goods as cargo. They relied on a Rajasthan High Court ruling that goods moved within a factory cannot be considered as cargo, which they argued was applicable to their case within the mines as well.

4. The Tribunal considered the arguments from both sides and noted the history of disputes regarding the scope of cargo handling services. Referring to previous decisions and the bona fide belief of the Respondents that the tax was not payable, the Tribunal found that there were valid reasons to support the waiver of penalty under Section 80 of the Finance Act. The Tribunal also highlighted that the Respondents were not contesting the tax amount confirmed, only the imposition of penalty was under consideration.

5. Ultimately, the Tribunal rejected the Revenue's appeal, emphasizing that given the circumstances and the precedent of similar cases, it was appropriate to uphold the waiver of penalty by the Commissioner (Appeals). The Tribunal concluded that this was a suitable case for invoking the provisions under Section 80 of the Finance Act, 1994, and decided not to interfere with the order of the Commissioner (Appeals).