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TMI Blog2012 (10) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... portation and stacking of various iron and steel products within the stockyard of M/s SAIL. It is seen that initially the department was of the view that the appellant's activity fall under the category of 'cargo handling services' and issued a Show-Cause Notice (SCN) dtd. 02.04.03 to the appellant raising demand of duty for the period 06.08.2000 to 31.12.2002. The said SCN was adjudicated by the Asstt. Commission vide his order dtd. 05.05.03. It is seen from the said order that as the service tax was paid by the appellant prior to the issuance of the SCN, the same was confirmed along with confirmation of interest but keeping in view the bona fides of the appellant, no penalty was imposed. The said order was passed by the Asstt. Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and penalty of identical amount imposed under each of sections 76 & 78 of the Finance Act. 6. The appellants have contested the said demand on merits as also on limitation. 7. The appellants' contention is that the earlier order of the Asstt. Commissioner dtd. 05.05.03 confirmed the service tax only on loading and unloading and after the said order, they started paying service tax on the said activity. Inasmuch as the Asstt. Commissioner himself did not confirmed the demand on the activity of transportation and stacking, the appellants cannot be held guilty of any suppression for non-payment of service tax on the said activity for the subsequent period. 8. We also note that part of the demand covered by the SCN dtd. 26.03.09 relates to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated with guilty mind, i.e., with intention to evade payment of tax/duty. In the instant case, as we have already noticed that the agreement was before the department and the subsequent agreements were on the same lines, no mala fide can be attributed by the appellants by any state of imagination. As such we hold that as the demand covered by both the SCNs are by invoking the extended period of limitation, the same are barred. 10. In any case we note that the appellants have a good case on merits. The activity of transportation and stacking was within the stockyard premises. Number of Tribunal's decisions have held that such activity cannot be held to be covered by the activity of 'cargo handling services'. Reference can be made to Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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