2009 (1) TMI 147 - AT - Service Tax

Unloading of cargo - unloading of coal from rail wagons - appellants engage sufficient labourers for timely completion of the work of unloading - Loading coal to the wagon by providing pay loaders was held as covered under head Cargo Handling Service in case of Gajanand Agarwal & Others therefore Commissioner has rightly held that the work handled by them falls under the category of Cargo Handling Services - Service tax was introduced on 16-7-02 - bona fide belief that the activities undertaken by them are not covered - as it is a question of interpretation of law and there can be no question of suppression - no justification for invoking extended period of limitation

Summary

Issues:
Interpretation of the scope of "Cargo Handling Services" under the Finance Act, 1994.
Applicability of service tax on handling work related to unloading of coal.
Interpretation of the definition of taxable service provided by a cargo handling agency.
Consideration of whether the activities undertaken fall under cargo handling services.
Evaluation of penalties imposed under various sections of the Finance Act.

Analysis:
The case involved an appeal against the order of the Commissioner regarding the classification of handling work related to unloading coal as "Cargo Handling Services" attracting service tax. The appellants had a contract for unloading coal at a thermal power station, which included breaking and pushing coal into the track hopper. The Commissioner demanded service tax and imposed penalties based on the categorization of the work as cargo handling services.

The appellant argued that their activities did not constitute cargo handling services as they were contractors, not cargo handling agents. They relied on a High Court decision and a Board clarification to support their position. The appellant emphasized that no motor vehicle was used for coal transportation, and labor was mainly involved in opening gates, breaking coal lumps, and shoveling coal into the hopper.

The Departmental Representative supported the Commissioner's findings, stating that the activities fell under cargo handling services as per the contract provisions. They distinguished a previous Tribunal decision involving loading coal using pay loaders and cited another case where loading coal was considered cargo handling services.

The Tribunal analyzed the definitions of "Cargo Handling Services" and "taxable service" under the Finance Act, 1994. They noted that the main part of the definition referred to loading, unloading, packing, or unpacking of cargo, which the appellants were engaged in. The Tribunal compared the present case with previous judgments and concluded that the activities of the appellants aligned with cargo handling services, upholding the Commissioner's decision.

Regarding the imposition of penalties, the Tribunal found no justification for invoking the extended period of limitation. They directed the original authority to recalculate the demand of service tax within the normal period of limitation and extend the benefit of cum-tax. Consequently, the penalties imposed on the appellants were set aside, emphasizing that the issue involved interpretation of the law without any intent to evade service tax.

In conclusion, the appeal was disposed of with the Tribunal upholding the classification of the activities as cargo handling services for the purpose of service tax but modifying the demand and penalties based on the interpretation of law and limitation periods.