2015 (9) TMI 159

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..... ppeal is filed against order in appeal dated 07/01/2009 which upheld the order-in-original dated 27/11/2007 in terms of which service tax demand of Rs. 16,82,673/- was confirmed along with interest but no penalty under Sections 76,77 and 78 of the Finance Act 1994 was imposed. The period of demand in this case is from 16/08/2002 to 9/9/2004. The show cause notice was issued on 02/08/2007. The prim .....

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..... gs into trucks/other vehicles authorized by the company. OR (e) Transporting packed bags to Ranapratapnagar Railway station and loading the same into wagons Any damarrage/wharfago if levied by railways would be to your account. As per the said contract the payment rates were as under: (i) For all works at para 1 (a), (b), (c), & (d) Rs. 255.30/- (ii) For all works a para 1(a), (b), (c) and (e .....

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..... e under cargo handling service. 4. We have considered the contentions of both sides. 5. We find that the contract is essentially for grinding of rock phosphate to 100 mesh size powder. Even the "subject" of the contract is "contract for grinding of rock phosphate. Thus, it is evident that the contract was not for cargo handling and the work other than grinding of rock phosphate was incidental or .....

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..... fore, the entire contracted activities did not get the character of cargo handling service. Further, it is seen that from 10.09.2004, appellant has been paying service tax on the entire consideration received under business auxiliary service on account of the fact that "production of goods on behalf of the client" was added to the definition of BAS from the said date. The Revenue also gave them re .....

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..... Section78 are identical to those required for invoking extended period. Therefore, when 78 penalty has been found to be unimposable, invocation of extended period also cannot be sustained and as a consequence thereof, the entire demand is hit by time-bar. 7. In view of the analysis above, the impugned demand is set aside on merit as well as on the ground of time-bar. The appeal is allowed.
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