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TMI Blog2017 (2) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... & Customs (Appeals), Ghaziabad and are having same issue for different period. Therefore, they are taken together for decision. 2. Brief facts of the case are that the appellants are providing Manpower Recruitment Agency Service to their sole client, M/s Godfrey Philips India Ltd., C/O International Tobacco Company Ltd. On the scrutiny of record of the appellants it was revealed that appellants were providing services related to godown premises of GPI in relation to handling of Tobacco & Non-tobacco materials and transportation of the same from godown to factory, supply of trained forklift operators at factory and godown, carrying out bright scrap (tobacco leaf) activity including opening of bales, crushing and transferring the bright scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption the appellant were called upon to show cause as to why Service tax amounting to Rs. 16,89,552/- should not be demanded from them under proviso to Sub-section (1) of Section 73 of Finance Act, 1994. In addition, there was a proposal for interest and penalty. The said demand of Service tax was on the assessable value of Rs. 1,54,18,304/- for the years 2007-08 to 2011-12. The assessable value Rs. 1,54,18,304/- was transportation receipt for the years 2007-08 to 2011-12. The said Show Cause Notice bearing No. 10/ST/ADC/GZB/2012-13 dated 26/09/2012, was adjudicated through Order-in-Original No. 10/ADC/ST/GZB/2013-14 dated 15/11/2013. The appellant submitted before the Original Authority that services provided by them were right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice tax as a Cargo Handling Service Agency. The Original Authority did not appreciate the arguments and confirmed the demand and imposed equal penalty. The appellants were issued with another Show Cause Notice for subsequent period which was decided through Order-in-Original No. 22/ST/2013-14 dated 09/01/2014 wherein a demand of Service tax amounting to Rs. 1,46,371/- was confirmed and equal penalty was imposed. The appellant preferred appeal before Commissioner (Appeals) against both the above said Orders-in-Original. Both the said appeals were decided through common Order-in-Appeal No. GZB-EXCUS-000-24 to 26-2014-15 dated 24/07/2007 which is impugned order for these two appeals. The appellant submitted argument before Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight b) Service of packaging together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking but does not include, handling of export cargo or passenger baggage or mere transportation of goods." Further the existence of the word agency in the definition would imply that the person handling the cargo (goods) should not be the owner of the cargo but should handle the same in a representative capacity as an agent. He has submitted as per Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Show Cause Notice did not give the opportunity to the appellant to putforth his argument on proposed classification of services provided by him. Revenue has prejudged the issue and unilaterally decided the classification which is against the principle of natural justice. Further, the Show Cause Notice has admitted to demand the Service tax on that component of the assessable value on which Service tax was already paid by service recipient. Therefore, we find that the said Show Cause Notice is unsustainable. In view of that finding we drop the proceedings and set aside both impugned Order-in-Original & Order-in-Appeal. For the said reasons, we allow both the appeals. The appellants shall be entitled for consequential relief, as per l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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