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TMI Blog2019 (9) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of DCCE vs. Sushil Co. [ 2016 (4) TMI 987 - SUPREME COURT ] and also clarified by the Board Circular dated 1.8.2002 - demand of service tax on Cargo Handling Service for the period 16.8.2002 to 30.6.2003 is not sustainable in law. Time Limitation - HELD THAT:- The entire demand is also barred by limitation because the show-cause notice was issued on 18.7.2009 proposing to demand service tax for the period from 16.8.2002 to 30.6.2003 and in the show-cause notice, there is no allegation of fraud, collusion, willful misstatement or suppression of fact with intent to evade payment of tax. Appeal allowed on merits as well as on limitation. X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the appellant has paid the service tax under the category of Cargo Handling Service from 1.7.2003 in respect of stevedoring service including discharging of materials from vessel at Karwar Port, a minor port. He further submitted that the activity of stevedoring service including discharging of goods from the vessel on to the wharf was not a activity of Cargo Handling Service provided for freight and therefore, there was no liability to pay service tax during the period from 16.8.2002 to 30.6.2003. Thereafter, the learned counsel referred to the definition of Cargo Handling Service and taxable service as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s." 4.1 Learned counsel also relied upon the decision of the Hon'ble Apex Court in the case of DCCE vs. Sushil & Co.: 2016 (42) STR 625 (SC) which has held as under: "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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levy of service tax is cleared from CBEC No.59/08/2003-ST dated 20.6.2003. He further submitted that in the show-cause notice, there is no allegation of fraud, collusion, willful misstatement or suppression of facts or contravention of any Rules with intent to evade payment of service tax and in the absence of any allegation, larger period of limitation cannot invoked. For this, he relied upon the following decisions: * Collector of Central Excise vs. HMM Ltd.: 1995 (76) ELT 497 (SC) * Kaur & Singh vs. Collector of Central Excise, New Delhi: 1997 (94) ELT 289 (SC) * Larsen & Toubro Ltd. vs. Commissioner of Central Excise: 2007 (211) ELT 513 (SC) 5. On the other hand, the learned AR defended the impugned order. 6. After considering s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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