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TMI Blog2016 (4) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... ng into consideration all the averments, which were made in the show cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show cause notice are accepted, the said contract does not amount to providing any 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself. Whether the contract could be treated as 'Cargo Handling Service' within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Appeal No. 3106 of 2008 - - - Dated:- 13-4-2016 - A. K. Sikri And Rohinton Fali Nariman, JJ. For the Appellant : Mr. A. K. Sanghi, Sr. Adv. Mr. P. K. Mullick, Adv. Mr. Ajay Kumar, Adv. Mr. B. Krishna Prasad, Adv. For the Respondent : Mr. Kavin Gulati, Sr. Adv. Mr. Praveen Kumar, Adv. Ms. Babita Sant, Adv. ORDER 1. The respondent-assessee herein is the holder of a Certificate of Registration in Form ST2 under Section 69 of the Finance Act, 1994 (hereinafter referred to as, the Act ). This Certificate was given to him on 29.10.2004 under the category 'Business Auxiliary Service'. The respondent also obtained registration as 'Manpower Recruitment Agency' under the Act with effect from 01.07.2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and the labour was not doing any work of packing, unpacking, loading and unloading of any cargo. The High Court, by the impugned Judgment, has accepted the plea of the respondent, resulting into allowing the writ petition and quashing the show cause notice. It is this Judgment of the High Court, the validity of which is questioned by the appellant-Department in the present appeal. 4. Before coming to the issue at hand, we may record the statement of Mr. A.K.Sanghi, learned senior counsel appearing for the appellant-Department, that it was not appropriate for the High Court to deal with the said writ petition, bypassing the adjudicatory machinery provided under the Act, more so when the statutory appeals against the adjudication orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ude handling of export cargo or passenger baggage or mere transportation of goods. 6. The High Court, on the interpretation of the aforesaid Entry, has observed that two conditions for considering any service to be 'Cargo Handling Service' need to be satisfied, namely; (1) there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and; (2) the service provider must independently be involved in loading-unloading or packing-unpacking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. On the reading of the aforesaid contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court has rightly concluded that the aforesaid services would not fall within the definition of 'Cargo Handing Services'. 11. Mr. Kavin Gulati, learned senior counsel appearing for the respondent-assessee, has drawn our attention to a judgment of the Delhi Bench of the Tribunal in J J Enterprises Vs. Commissioner of Central Excise, Raipur, reported in 2006 (3) S.T.R. 655. In this judgment, almost similar services provided by the assessee were held not to be 'Cargo Handling Services'. In arriving at such a conclusion, the Tribunal had referred to the clarificatory instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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