2016 (4) TMI 987 - SC - Service Tax

Cargo Handling Service - Contract entered for the purpose of packing, loading and unloading etc. of the goods, for which labour was supplied by the respondent to M/s Birla Corporation Ltd. - Department contended that it was not appropriate for the High Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders are also provided - Held that - the High Court has simply gone by the contract, which was entered into between the respondent and M/s Birla Corporation Ltd. and taking into consideration all the averments, which were made in the show cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show cause notice are accepted, the said contract does not amount to providing any Cargo Handling Service as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself. Whether the contract could be treated as Cargo Handling Service within the meaning of Entry 23 of Section 65 of the Act - Labour is supplied by the respondent to M/s Birla Corporation Ltd. - Respondent contended that no services were provided by the respondent by entering into the contract, as it was only supplying labour and the labour was not doing any work of packing, unpacking, loading and unloading of any cargo - Held that - the High Court, on the interpretation of the Entry 23, has observed that two conditions for considering any service to be Cargo Handling Service need to be satisfied, namely; (1) there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and; (2) the service provider must independently be involved in loading-unloading or packing-unpacking of the cargo. On reading of the contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court has rightly concluded that the aforesaid services would not fall within the definition of Cargo Handing Services . We, therefore, uphold the conclusion of the High Court that services provided by the respondent-assessee did not amount to Cargo Handling Services and, therefore, no such service tax was leviable. - Decided against the revenue

Summary

Issues:
1. Interpretation of whether the services provided by the respondent-assessee constitute 'Cargo Handling Service' under Entry 23 of Section 65 of the Finance Act, 1994.
2. Validity of the High Court's judgment in quashing the show cause notice against the respondent-assessee.

Issue 1: Interpretation of 'Cargo Handling Service':
The respondent-assessee held a Certificate of Registration under the Finance Act, 1994, and was alleged by the appellant-department to have evaded service tax by supplying labor to a company for packing, loading, and unloading goods. The High Court accepted the respondent's contention that no 'Cargo Handling Service' was provided, leading to the quashing of the show cause notice. The Supreme Court analyzed Entry 23 of Section 65, defining 'Cargo Handling Service,' emphasizing two conditions: the presence of cargo and the independent involvement of the service provider in loading-unloading or packing-unpacking. The Court found that the respondent's services did not meet these conditions as the labor supplied did not handle loading or unloading; instead, it was done by automatic machines, excluding the services from the definition of 'Cargo Handling Service.'

Issue 2: Validity of High Court's Judgment:
The appellant-department challenged the High Court's decision to entertain the writ petition bypassing statutory adjudicatory procedures. The Court acknowledged the department's objection but upheld the High Court's decision, stating that no disputed facts were involved, and the legal issue could be determined based on admitted facts. The High Court's interpretation of the contract between the respondent and the client, coupled with the absence of loading or unloading tasks for the labor supplied, led to the conclusion that the services did not fall under 'Cargo Handling Services.' The Court also referred to a Tribunal judgment supporting a similar interpretation and a clarificatory instruction from the Department that activities like loading or unloading by individual laborers do not attract service tax as cargo handling services. Consequently, the Supreme Court dismissed the appeal, affirming the High Court's decision.

In conclusion, the Supreme Court upheld the High Court's judgment, ruling that the services provided by the respondent-assessee did not amount to 'Cargo Handling Services' as per the statutory definition, thereby dismissing the appeal without costs.