2015 (9) TMI 943 - AT - Service Tax

Cargo handling service - for railing and transport of Maganese Ore the service involved wagon loading, truck loading, transport including stacking and de-stacking/rehandling of manganese ore. - penalties under Section 76, 77 and 78 - Held that - transport activity (excluding stacking) formed a very small part of the entire service rendered, inasmuch as while hiring of truck including stacking was @ of ₹ 1,15000 / PMT, transport excluding stacking was only ₹ 10,000 / PMT, wagon loading was @ ₹ 1,25,000/- PMT and truck loading @ 25,000/- / PMT and stacking/re-handling was also @ 10,000 / PMT. As the goods were loaded on to the trucks and wagons they acquired the status of cargo. Therefore the activity performed by the appellant clearly fell under the category of cargo handling service as defined in Section 65(23) ibid. This conclusion is in harmony with the ratio of the judgement in the case of Coal Carriers Vs. CCE - 2011 (2) TMI 1140 - ORISSA HIGH COURT . - The service was rendered to a public sector unit which had taken up the matter with CBEC contending that it was not taxable. It is thus evident that it is not a case where the appellant-assessees could/would have intended to suppress the fact of rendition of the impugned service. The appellants also supplied the information within about 3 weeks of the date on which they were summoned to appear before the Central Excise officer. The Commissioner (Appeals) has taken due note of some of the judgements like in the case of Singh Brothers - 2009 (1) TMI 147 - CESTAT NEW DELHI . - appellants are not guilty of supression and do not deserve to be penalised - Decided against assessee.

Summary

Issues:
1. Appeal against order-in-Appeal upholding demand for cargo handling service.
2. Appeal by Revenue against setting aside demand for extended period and penalties.
3. Contention on activity classification under cargo handling service.
4. Allegation of suppression of facts by the appellants.
5. Justification for invoking the extended period and penalties.
6. Analysis of the contract and service rendered.
7. Comparison with relevant case laws.
8. Decision on the appeals filed by both parties.

Issue 1 - Appeal against order-in-Appeal:
The appellant-assessees filed appeals against the order-in-Appeal upholding the demand for cargo handling service for the service rendered to M/s Maganese Ore India Ltd. The demand was confirmed for the extended period of five years along with penalties.

Issue 2 - Appeal by Revenue:
The Revenue filed appeals against the order-in-Appeal, contending that the demand for the extended period and penalties were incorrectly set aside. They argued that the appellants were guilty of suppression of facts.

Issue 3 - Activity classification:
The appellant-assessees argued that their activity fell under mining service, not cargo handling service. They claimed that mining service was not taxable during the relevant period and provided details when requested.

Issue 4 - Allegation of suppression:
Revenue alleged that the appellants suppressed facts as they did not mark their presence in response to summons promptly. They contended that suppression was sufficient to invoke the extended period for demand.

Issue 5 - Extended period and penalties:
Revenue justified invoking the extended period and penalties, stating that intent to evade payment of duty was not required to prove suppression, as per the relevant provisions.

Issue 6 - Contract analysis:
The Tribunal analyzed the contract and service rendered, noting that the activity involved wagon loading, transport, stacking, and de-stacking of manganese ore. The service predominantly fell under cargo handling service as per the definition in Section 65(23) of the Finance Act, 1994.

Issue 7 - Comparison with case laws:
The Tribunal compared the case with relevant judgments, including Coal Carriers Vs. CCE and other CESTAT judgments related to the transport of goods within mining areas, highlighting the differences in facts.

Issue 8 - Decision on appeals:
After considering both parties' contentions and the contract details, the Tribunal dismissed the appeals filed by both the appellant-assessees and the Revenue. The Tribunal upheld the order-in-Appeal and found no grounds for appellate intervention.

In conclusion, the Tribunal's detailed analysis of the issues involved in the appeals resulted in the dismissal of the appeals filed by both parties, maintaining the demand for cargo handling service and rejecting the allegations of suppression of facts and the need for penalties.