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TMI Blog2014 (7) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... reciation under Section 32 of the IT Act 1961. - Learned AR submits that the credit was taken in October 2007 and even at the time of adjudication, the appellants could not give the details and could not specifically confirm that they have filed a revised return. The learned counsel also could not clearly show whether the time limit for filing return was over and the return was filed or not. In the absence of any clarity in this regard, we consider that appellant should deposit this amount even if the matter is going to be remanded for de novo adjudication. Reversal of credit towards traded goods - Held that:- Prior to 2008, Information Technology Service was also considered as exempted service and it has been excluded from the definition of ‘Business Auxiliary Service’ and even then it was held that Information Technology Service is an exempted service and therefore if separate accounts are not maintained, the amount as specified in Rule 6 of CENVAT Credit Rules is required to be paid. The appellant is directed to deposit an amount of ₹ 10,00,000 - stay granted partly - matter remanded back. - ST/2041/2012-DB - Final Order No. 21023/2014 - Dated:- 24-6-2014 - SHRI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t personnel to handle messages, secretarial services, internet and telecom facilities, pantry and security. We find that the activity undertaken by the appellants is similar to the one as can be seen from the observations in paragraph 7 itself. 4.1. Learned AR would submit that there is a difference between the case of M/s. Srinivasa Transports and the appellant. He submits that in this case there is a break up of different activities undertaken by the appellant and he draws our attention to the impugned order wherein the issue was considered. He submits that in paragraph 21 the issue was discussed and it was found that the activities undertaken by the assessees under the following heads were considered as amounting to Cargo Handling Service. a) Internal Handling b) Material Handling Contract c) Transportation and d) Crane Supply and wharfage charges 4.2. He also submits that the amounts under different categories also available and therefore the Tribunal can decide the issue regarding waiver of pre-deposit on the basis of material unlike the case of the Srinivasa Transports. He also submits that the decision relied upon by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods. The pre-transportation activities like packing/loading and post-transportation activities like unloading/unpacking have been brought under the service tax in the Cargo Handling Service category, which are provided by the Cargo Handling Agency. The clarification issued by the C.B.E.C. Circular F.No. B/1/2002-TRU. Dated 1-8-02.vide Sl.No.3 stipulates the services which are liable to tax under this category are the services provided by cargo handling of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Mere transportation of goods is not covered in the category of cargo handling service. The relevant portions of the terms and conditions of work order No. MCL/IBV/CGM/LOCP/03-04/91, dated 29.04.2003 are extracted hereunder: 1. The notice has to be in readiness for starting loading work as specified in the tender as soon as the wagons are supplied. It will not be the management's responsibility to inform the contractor after wagons are placed. They will have to make their own arrangement for keeping in information etc. 2. The rate offered and as agreed by the noticee in writing and accepted is inclusive of all expend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der loading and over loading of wagons, if any, shall be recovered from the running bills of the contractors. (B) In case weighment is calculated on volumetric basis, the contractor's responsibility shall be- (i) To load the wagon to a predetermined height fixed by the management of MCL for each rake/wagon as the case may be and level the same to indicated height of loading. (ii) To make necessary adjustments of the loaded wagons so as to bring it predetermined loading height correctly. (iii) To make necessary adjustments of the loaded wagons if railways return the rake even after action taken as indicated in (i) and (ii) above. (iv) lf the contractor fails to observe one or all clauses above and does any under loading/over loading will be fully on the account of the contractor. Ongoing through these paragraphs which are reproduced above, we find that the issue in the present case before us is not comparable with the issue before the Honble High Court. In the present case appellants are engaged in transferring equipments, machinery, raw materials etc. within the factory premises and there is no transportation outside the factory. Further decision in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cture we do not consider that it is necessary for us to discuss this issue in detail. 4.4. An amount of ₹ 9,64,674/- has been demanded on the ground that appellant had availed CENVAT credit on capital goods as well as claimed depreciation under Section 32 of the IT Act 1961. The learned counsel submitted that the appellants have filed revised return and therefore the credit availed is in order. Learned AR submits that the credit was taken in October 2007 and even at the time of adjudication, the appellants could not give the details and could not specifically confirm that they have filed a revised return. The learned counsel also could not clearly show whether the time limit for filing return was over and the return was filed or not. In the absence of any clarity in this regard, we consider that appellant should deposit this amount even if the matter is going to be remanded for de novo adjudication. Learned counsel fairly agrees to do so. 4.5. An amount of ₹ 60,840/- being the credit taken on wire ropes, gears and tools as inputs have been held to be capital goods and demand has been raised on the ground that 50% of the credit was taken prematurely. Learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions: 4. The learned AR on the other hand submits that Rule 2(e) of the CCR defines exempted service as taxable service exempted from the whole of the service tax payable thereon and includes services in which no service tax is leviable under Section 66 of the Act. Non-taxable service has been interpreted to mean and include those services not specified under Section 65(105) of the Act also. He relied upon the decisions in the case of Idea Cellular Ltd. [2009 (16) STR 712 (Tri. Del.)], mPortal India Wireless Solutions Ltd. [2012 (27) STR 134 (Kar.)] and Loreal India Pvt. Ltd. [2012 (28) STR 443 (Tri. Mumbai)]. He also submits that if the services or activity relation to this amount is held as banking service, the same is fully exempt from tax in respect of account operation service and similar services. He submits that therefore the premium amount collected towards savings management can be considered as exempted by notification issued under Section 93. 4.9. He relies on the observations in this paragraph to submit that trading is a non-taxable service. Nowhere in the order we have observed that trading is a non-taxable service in paragraph 4 relied upon by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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