2016 (11) TMI 703 - AT - Service Tax

Demand - cargo handling services - The service provided by the appellant for transporting fly ash in closed trucks after liasoning loading port and unloading of the same at the factory site has been held to be falling under cargo handling services - demand is beyond the period of five years - period of limitation - Held that - the lower authorities have not referred to any positive evidence on record to show that the appellant indulged in any malafide activities with an intent to evade payment of duty. In such a scenario the demand raised beyond the period of limitation is not sustainable - the entire demand is beyond limitation - appeal allowed.

Summary

Issues:
- Confirmation of service tax demand for cargo handling services
- Application of limitation period for demand beyond five years

Analysis:
1. The judgment deals with the confirmation of a service tax demand amounting to ?78,969 against the appellant for the period October 2002 to March 2003 under the category of cargo handling services. The service provided involved transporting fly ash in closed trucks after liaising loading port and unloading at the factory site, deemed to fall under cargo handling services.

2. Regarding the limitation period, it was noted that the show cause notice was issued on 16.04.2008, with a part of the demand extending beyond the five-year period stipulated by law. Reference was made to a similar case of Jai Jawan Coal Carriers Pvt. Ltd. vs. CCE New Delhi, where conflicting decisions existed on the taxability of similar activities. The judgment emphasized the need for a bonafide belief by the appellant that their activity was not taxable, thereby limiting the Department's ability to invoke the extended limitation period.

3. The Tribunal highlighted that the lower authorities failed to provide positive evidence indicating any malafide intent by the appellant to evade duty payment. Citing various decisions, it was concluded that in the absence of such evidence, demands raised beyond the limitation period were not sustainable.

4. Ultimately, the Tribunal found the entire demand to be beyond the limitation period, leading to the dismissal of the impugned orders. Consequently, the appeal was allowed in favor of the appellant, granting them consequential relief.

This judgment underscores the importance of adherence to limitation periods in tax matters, the necessity of a bonafide belief in determining tax liability, and the requirement for concrete evidence to sustain demands raised by tax authorities.