9911796707
TMI Blog2009 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... and pay Service tax amounting to Rs. 2,02,796/- and accordingly, the appellant was issued with SCN dated 15-10-2007 directing him to pay the Service tax under Section 73(1) of the Finance Act, 1994 (hereinafter referred as the Act) along with proposal to recover and charge interest under Section 75 and with further proposal of imposition of penalties under Sections 76, 77 and 78 of the Act; that on adjudication, the demand raised in the SCN-cum-demand notice was confirmed under Section 73 along with interest under Section 75 of the Act, besides imposing penalties under Sections 76, 77 and 78 of the Act holding that the activity or role played by the appellant is not limited to supply of manpower but the activity carried out by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading or unloading should be related to cargo and the appellant specifically mentioned that it was doing the work of packing, carrying and arranging sugar bags in the factory premises, and godowns manually along with its colleagues /labours / employees and the case laws relied upon by the appellant are aptly applicable. 3. PH was held on 5-10-2009 at 02.45 PM. Shri Sandeep S. Mutalik, Advocate, duly authorized by the appellant appeared before me at 02.45 PM. Originally the hearing in this case was fixed at 12.00 Noon. None appeared from Department s side despite intimation. During the hearing, in addition to reiterating the submissions made in the appeal memorandum, he has further stressed that his client (with his manpower) was providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urers provided to his client. Whereas the appellant claims that he was doing the work in the capacity of an individual along with his colleagues in the nature of work of Hamali in the factory and godown of the concerned sugar factory and the amount which was paid to him was Hamali charges i.e. labour charges of himself and his colleagues / employees; that he was in no way concerned in cargo nor the intention of the concerned factory in engaging him; that the appellant further claims that the lower adjudicating authority failed to appreciate the taxable service under Section 65 (105)(zr), according to which, the taxable service means any service provided to a person by the Cargo Handling Agency in relation to Cargo Handling Service ; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge that the appellant is not engaged for loading, unloading, packing or unpacking of cargo (sugar). Even otherwise going by the meaning of the word cargo , the activities of the appellant i.e. filling of sugar in the gunny bags and staking the same in the godown cannot be brought under Cargo Handling Service . Because, according to the meaning assigned to the cargo , it should be carried by ship, aircraft or motor vehicle. In the instant case, the appellant is not at all engaged for transporting the goods. Rather it was not alleged in the impugned SCN. The Hon ble Tribunal, Bangalore in the case of ITW India Ltd. v. CCE, Hyderabad - 2009 (14) S.T.R. 826 held that even the later amendment has linked cargo handling as service of pac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chines and during the course of mechanized work, manpower is also used for lifting/carrying sugar bags here and there and hence cannot be brought under cargo handling service . The Hon ble Tribunal Delhi in the case of J J Enterprises v. CCE, Raipur - 2006 (3) S.T.R. 655 (Tri. - Del.) = 2005 (186) E.L.T. 189 (Tri.-Delhi) has held that the role of manpower is to supplement and oversee and guide the activity. Upon the fixing of a HDPE bag on to the mouth of the packing machine, the machine picks the bag, fills it and drops the cement packed bag on the conveyer. The conveyer carries the bag upto and into railway wagon or truck and stacks the bags. The role of the manpower is to fix the HDPE bags on the mouth of packing machine, oversee of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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