2008 (6) TMI 626 - Commissioner - Service Tax

Summary

Issues Involved:
1. Classification of services under "cargo handling agency" service.
2. Violation of principles of natural justice.
3. Applicability of small-scale exemption.
4. Classification under "Business Auxiliary Service" and "manpower recruitment agency" service.
5. Invocation of extended period for demand.
6. Application of "cum-tax price" principle.

Summary:

1. Classification of Services under "Cargo Handling Agency" Service:
The main issue was whether the activities carried out by the appellants fall under "cargo handling service." The Assistant Commissioner confirmed the amounts mentioned in the SCNs and imposed penalties without discussing how the activities fall under "cargo handling service." The judgment concluded that mere transportation of goods, stitching of sugar bags, handling of bagasse, and handling of press-mud do not fall under "cargo handling service" as per the statutory definition and CBEC Circular F.No. B.11/1/2002 TRU dated 1-8-2002.

2. Violation of Principles of Natural Justice:
The first five appellants claimed that the Assistant Commissioner passed orders ex-parte without hearing them, violating the principles of natural justice. The sixth appellant claimed that his detailed reply was ignored. The judgment noted that the orders were issued before the stipulated date, indicating a mechanical approach by the adjudicating authority.

3. Applicability of Small-Scale Exemption:
The appellants argued that the amounts received during the financial year 2005-06 were within the exemption limit. The judgment agreed, noting that the Assistant Commissioner failed to extend the small-scale exemption, further indicating a mechanical issuance of demand notices.

4. Classification under "Business Auxiliary Service" and "Manpower Recruitment Agency" Service:
The judgment held that the activities of stitching sugar bags and handling bagasse could be classified under "Business Auxiliary Service" and "manpower recruitment agency" service, respectively. However, these services were either exempt or not applicable during the relevant period as per statutory definitions and notifications.

5. Invocation of Extended Period for Demand:
The appellants contended that mere omission to obtain registration and pay service tax is insufficient to invoke the extended period unless mala fide intention is proven. The judgment agreed, citing Supreme Court decisions (Tamilnadu Housing Board v. CCE, Padmini Products v. CCE, Cosmic Dye Chemicals v. CCE) and concluded that the Department failed to prove mala fide intention.

6. Application of "Cum-Tax Price" Principle:
The appellants argued that the principle of "cum-tax price" was not followed while raising demands. The judgment agreed, noting that this principle must be followed when fresh demands are raised, further highlighting the adjudicating authority's omissions.

Conclusion:
The judgment allowed all six appeals, setting aside the Orders-in-originals, and concluded that the appellants succeeded on merits, time bar aspect, and consequently, imposition of penalty and interest did not survive.