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TMI Blog2016 (8) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... oods within the factory premises. services rendered in the present case do not fall under Cargo Handling Service - Decision in the case of Gaytri Construction Co. [2011 (9) TMI 481 - CESTAT, New Delhi] followed – appeal dismissed – decided against the Revenue. - ST/168/09(DB) - Final Order No. 70263/2016 - Dated:- 8-6-2016 - Mr. Anil Choudhary, Member (Judicial) and Mr. Anil G. Shakkarwar, Member (Technical) Shri D.S. Mann, Assistant Commissioner (AR), for Appellant Ms Rinki Arora, Advocate for Respondents ORDER This appeal is filed by the Revenue against Order-in-Appeal No. 212-213-CE/MRT-I/2008 dated 24/12/2008 passed by Commissioner of Central Excise Customs (Appeals), Meerut-l. 2. The respondents were prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-l which is impugned order. The learned Commissioner (Appeals) hold as follows:- The defence put forth thus merits consideration. Service tax is required to be paid only when the cargo is handled by a cargo handling agency as defined in Sec. 65(105)(zr) of the Finance Act, 1994. Neither the impugned order nor the show cause notice has mentioned that the appellant has a cargo handling agency. The sugar mill, in the absence of the regular contractor, for their own convenience, made the appellant a supervisor of fellow labourers and the commission meant for the contractor was given to the appellant which they had distributed among fellow labourers. I find that loading, unloading and shifting of sugar bags from the floor of the mills to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of transport i.e. Truck, Rail, Ship or Aircraft is merely an assumption. The demand cannot be raised on assumptions and presumptions. The Hon'ble Supreme Court has held in the case of M/s Gain Mahtani Vs State of a Maharastra-AIR 1971 SC 1998. finding of revenue authorities based on pure assumption and conjecture and no evidence should be quashed . The Hon'ble CESTAT have consistently held that demand based on assumption and conjectures has to be set aside. In this regard decisions in Icy cold Commercial Enterprises vs CCE 1994(69) ELT 337, CEGAT, D.P. Steel Industries vs CCE 1995(78) ELT 492 CEGAT, CCE vs Hardran Brothers 2004 (168) ELT 454 CESTAT, are relevant. Since the demand itself does not sustain, the issue of pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be classified under Cargo Handling Services . 6. The Learned Advocate for respondent submitted that in the show cause notice or the proceedings nowhere any evidence was provided to establish as to what work was exactly carried out by the manpower to whom the service receivers have paid. The invoices which were raised by the service providers giving details of the services rendered to the service receivers were not relied upon in the whole proceedings, further it was not necessary that each and every term of contract is implemented in a case. Further, he has pleaded that Darsan Lal in his statement dated 28.06.2007 has stated that the services provided by him includes shifting of sugar bags from conveyer belt to deferent godowns, stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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