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TMI Blog2018 (8) TMI 1589X X X X Extracts X X X X X X X X Extracts X X X X ..... infirmity with the conclusions arrived at by both the original and the lower appellate authorities that the activities in of the nature of cargo handling service. For the purpose of ascertaining whether the amounts relating to the surviving demand would be in the nature of reimbursable expenses which would be exigible to service tax liability, the matter is being remanded to the adjudicating authority for the limited purpose of ascertaining and reworking of the tax liability. Extended period of limitation - Held that:- It cannot be disputed that the assessees were discharging their tax liability under Man power Recruitment and Supply Agency Service, which was not objected to by the department till the point of audit - demand beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der various provisions of law. In adjudication, the original authority vide an order dt.11.01.2010 confirmed the demand of an amount of ₹ 42,93,171/- with interest thereon and also imposed equal penalty under Section 78 of the Finance Act, 1994. On appeal, the Commissioner (Appeals) vide the impugned order dt. 28.07.2011 upheld the finding of original authority that the services are required to be classified as Cargo handling Service, however held that the demand would survive only for one year prior to the issue of SCN and set aside the penalty imposed by original authority. Hence assessee has come in appeal (ST/571/2011) against the surviving demand as upheld by the lower appellate authority. The Department has also filed an Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal appeal, ld. Advocate submits that the Commissioner (Appeals) has gone into the aspect of there being no suppression on the part of the assessee. It is also pointed out that they had been discharging duty liability under Man Power Recruitment and Supply Agency Service which had not been objected to by the department. Only pursuant to the audit the department otherwise had issued the SCN. In the circumstances, there cannot be any extension of extended period. 3. On the other hand, Ld. A.R Shri Arjun Ragvendra submits that both the adjudicating authority as well as the Commissioner (Appeals) have analyzed the activities of the assessee and given a reasoned finding that they would very much fall within the ambit of Cargo Handling Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 35 (All.), the Tribunal decision in Modi Construction Co. Vs CCE Ranchi - 2008 (12) STR 34 (Tri.- Kolkata) as approved by the Hon ble High Court of Jharkhand as reported in 2011 (23) STR 6 (Jhar.) and Tribunal decision in CCE Bhopal Vs Karanveer Singh Brothers - 2018 (9) GSTL 70 (Tri.) and Gaytri Construction Co. Vs CCE Jaipur - 2012 (25) STR 259 (Tri.-Del.), we find that it has been consistently held that shifting of goods within factory premises and activity of loading, unloading, packing, unpacking , recycling, and shifting of cargo within the factory premises will not fall under the purview of Cargo Handling Services. We respectfully follow the ratio laid down by the High Courts and hold that these services performed within t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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