2019 (4) TMI 1691 - AT - Service Tax

Classification of services - Cargo Handling services or Business Auxiliary services? - loading/unloading/handling and transportation of reels/reams/bundles/pallets/loose broke/machine stage re pulp in trailer/truck to the godown within the mill premises - HELD THAT - The nature of their activities as per the agreement clearly demonstrates that the appellant was undertaking the movement of materials from one place to another within the factory of the manufacturer and into their godown. The material handling within the factory not being in the nature of cargo cannot be considered as cargo handling service - reliance placed in the case of JAI RAM YADAV VERSUS CCE, CHANDIGARH-II 2015 (12) TMI 327 - CESTAT NEW DELHI . Since the entire agreement was for movement of goods within the factory, we find that there is no evidence that the appellant has actually handled cargo outside the factory of the manufacturer. They have indeed handled material and movement of material within the factory does not amount to cargo handling and it is only material handling. Therefore, no service can be charged - impugned order needs to be set aside. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against Order-in-Original regarding classification of services as cargo handling, violation of natural justice, refund entitlement, imposition of penalties, and invocation of extended period.

Analysis:
1. The appellant, a registered firm providing manpower for material movement, disputed the classification of their services as cargo handling, arguing that their activities were limited to movement within the factory premises and did not involve handling cargo outside the factory.
2. The appellant contended a violation of natural justice due to the denial of cross-examination of individuals whose statements were relied upon during the investigation.
3. Claiming entitlement to a refund, the appellant argued that if liable for cargo handling service tax, they should be refunded for taxes paid under business auxiliary service and manpower supply service.
4. The appellant challenged the imposition of penalties under Sec.76, 77, and 78, asserting the absence of evidence supporting any violations, thus precluding the invocation of the extended period for demand.
5. The appellant highlighted that they were advised by the department not to pay service tax under certain categories, and the department's awareness of their activities precluded the subsequent classification under cargo handling service.

Judgment:
1. The Tribunal analyzed the agreement terms and activities, concluding that the movement of materials within the factory did not constitute cargo handling service as the goods were not transported outside the manufacturer's premises.
2. Citing the requirement for goods to be considered cargo and specific conditions for cargo handling service, the Tribunal found that the appellant's activities fell under material handling within the factory, not cargo handling.
3. Referring to precedents, the Tribunal affirmed that material movement within the factory did not amount to cargo handling, aligning with decisions in similar cases.
4. Consequently, the Tribunal set aside the impugned order, allowing the appeal and ruling in favor of the appellant, emphasizing that no service tax could be charged for material handling within the factory premises.

This comprehensive analysis of the judgment provides a detailed breakdown of the issues raised, the arguments presented, and the Tribunal's decision, ensuring a thorough understanding of the legal complexities involved in the case.