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TMI Blog2014 (7) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant that they voluntarily disclosed their activities to the department. The departmental knowledge referred to by the learned counsel might be related to visits by the Range Officer to the factory of RINL. But there is nothing on record to show that there was any positive act or gesture on the appellant’s part to disclose the material facts to the department or to communicate to the department that they had ever maintained a bona fide belief against service tax liability. The plea of financial hardships raised by the learned counsel has also been considered. The first appellant is a public sector undertaking and the balance sheet produced by them indicates some losses for the year ended 31-3-2011 - Appellant has no prima facie case on merits - stay granted partly. Demand of service tax from Sub-contractor - Held that:- There was a circular of the Board, issued in 1997, which also prompted the second appellant to believe that they would not be liable to pay service tax qua sub-contractor. It was only in 2007 that the Board changed the view and clarified that a sub-contractor would also be liable like the main contractor for payment of service tax in respect of a given w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of cargo handling service . It is their case that they were only handling goods - whether by way of loading, unloading or transportation or stacking - within the factory premises of RINL and therefore these activities would not fall within the ambit of cargo handling service . In other words, for cargo handling service to be applicable, cargo should be handled in terms of the definition of the service between the premises of the service provider and that of the service recipient. There is also a submission made on behalf of the first appellant that cargo and goods are two different things and that the appellant was handling only goods and not cargo and hence cannot be said to have provided cargo handling service to RINL. In this connection, reliance is placed on a few decisions viz., S.N. Uppar Co. v. Commissioner - 2008 (11) S.T.R. 34 (Tri.-Bang.); ITW India Ltd. v. Commissioner - 2009 (14) S.T.R. 826 (Tri.-Bang.), etc. As regards management, maintenance or repair service , it is submitted on behalf of the first appellant that, for the period prior to 16-5-2005, service tax was leviable under this head only where the contract was purely one of maintenance. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly, strengthened the plea of the second appellant that they would not be liable to pay any service tax under any head whatsoever in respect of the sub-contracted activity. 4. We have also heard the learned Commissioner (AR), who has, apart from reiterating the findings of the adjudicating authorities, referred to the scope of works awarded by RINL to the first appellant and sub-contracted by the latter to the second appellant. He submits that the description of works given in the impugned order is not in dispute and, therefore, in terms of the said description, it must not be difficult to hold that most of the activities undertaken by the first appellant were covered by the definition of cargo handling service . This submission is being made as against the second appellant also. It is submitted that, in the absence of the relevant contracts/work orders, adverse inference is liable to be drawn against the appellants on the limitation issue. It is submitted that the first appellant cannot claim to have maintained a bona fide belief against service tax liability under the head cargo handling service . At no stage did they disclose the relevant information to the department. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions rendered in the particular facts of the cases cannot be applied to the case on hand like Euclid s theorem. Secondly, the definition of cargo handling service has not undergone any significant amendment during the period of dispute. We have studied the definition and prima facie find that the activities in question would be covered by the main part of this definition. Incidental transportation of any goods would not per se take out such activities from the purview of the definition of cargo handling service . We have also found no force in the plea of limitation. It is not the case of the appellant that they voluntarily disclosed their activities to the department. The departmental knowledge referred to by the learned counsel might be related to visits by the Range Officer to the factory of RINL. But there is nothing on record to show that there was any positive act or gesture on the appellant s part to disclose the material facts to the department or to communicate to the department that they had ever maintained a bona fide belief against service tax liability. The plea of financial hardships raised by the learned counsel has also been considered. The first appellant is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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