2009 (5) TMI 98 - AT - Service Tax

Cargo handling and transport - scope of service involved in loading and unloading of cargo and movement thereof - We do not find at all that transportation to be dominant element of the contract. - The appellant is not co-operating for disposal of the proceeding. It is also not registered under the law. All these factors were considered to raise the demand. We also noticed that the appellant is absent even on today. Prima facie, we do not find any case for total waiver of the demand raised.

Summary

Issues:
1. Applicability of Cargo Handling Service category.
2. Nature of activity and components of the contract.
3. Dominant element of transportation in the contract.
4. Cooperation of the appellant in the proceeding.
5. Registration status of the appellant.
6. Requirement for pre-deposit of demand.
7. Waiver of penalty and interest during appeal.

Analysis:
1. The tribunal examined the adjudication order and observed that the appellant was brought under the category of Cargo Handling Service. The adjudicating authority correctly judged the matter, considering the nature of the activity carried out by the appellant, which included loading, unloading, and movement of cargo. The tribunal noted that transportation was not the dominant element of the contract, and the appellant's lack of cooperation and registration status were also taken into account to raise the demand.

2. The tribunal found that the appellant failed to cooperate in the proceeding and was not registered under the law. Despite the absence of the appellant during the hearing, the tribunal determined that there was no case for a total waiver of the demand. Therefore, the tribunal directed the appellant to make a pre-deposit of 50% of the entire demand, including penalty and interest, within six weeks and comply by a specified date. The realization of the balance amount of penalty and interest was waived during the pendency of the appeal if the direction was followed.

3. The tribunal justified its order by citing precedents set by the Apex Court in cases such as Dunlop India Ltd. v. CCE and Benara Valves Ltd. v. CCE. The tribunal emphasized that the direction for pre-deposit was necessary to prevent prejudice to the revenue's interest in the absence of such a requirement. By following the established legal principles, the tribunal ensured a fair balance between the interests of the appellant and the revenue authorities.