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TMI Blog2019 (10) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... - In the first round, the period of dispute is December 2002 to June 2004 and the show-cause notice was issued on 07.05.2005 and during the said period, six months was provided for issuing the show-cause notice from the relevant date. Though the Department has invoked the extended period, Department has not brought any material on record to show that there was an intention to evade service tax on the part of the appellant because during the relevant time, this cargo handling service was introduced and a circular was also issued by the Department which clarified the position and the appellant entertained a bona fide belief that they are not liable to pay service tax under loading and unloading of cargo - the extended period has been wrongly invoked and entire demand is barred by limitation. The demands in both the cases on merits as well as on limitation is set aside - appeal allowed. - ST/194/2007-DB; ST/744/2009 - Final Order No. 20853-20854/2019 - Dated:- 30-9-2019 - MR. S.S GARG, JUDICIAL MEMBER AND MR. P. ANJANI KUMAR, TECHNICAL MEMBER For the Appellant : Shri N. Anand, Advocate For the Respondent : Shri Rama Holla, Superintendent(AR) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme for registration of those service providers who have not got themselves registered so far. The scheme aimed to register all service providers on the basis of their declaration and who had earlier failed to register themselves with the Department due to ignorance or any other reason with full waiver of penalty. The Scheme required the service providers to file self-declaration to be filed with the Department on or before 31.10.2004. The appellant opted to file the declaration under the above Scheme and they filed the declaration with the Department on 27/10/2004 and also obtained service tax registration. In the declaration filed under the above scheme, the appellant paid service tax of ₹ 53,929/- and also interest thereon of ₹ 5,108/- on the value of service charges which they received from Grasim Industries Ltd. The appellant did not include the value of Rake Handling Charges (consists of loading and unloading expenses) towards payment of service in view of the Board / TRU Circular No.B/11/1/2002-TRU dt. 01/08/2002 and as they entertained a bona fide belief that expenses reimbursed towards loading and unloading was not liable for payment of service tax in terms o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as service provider and has been paying service tax on the service charges received from Grasim Industries Ltd. and the appellant did not pay service tax in respect of loading / unloading expenses reimbursed in view of the circular dt. 01/08/2002 and also the appeal pertaining to previous period was pending before the Tribunal. The Department issue the show-cause notice dt. 21/02/2007 demanding the differential service tax of ₹ 3,72,894/- by invoking the extended period of limitation and the original authority confirmed the demand along with penalty and Commissioner(Appeals) partly allowed the appeal and upheld the demand but the penalty under Section 76 was dropped taking recourse to Section 80 of the Act. 3. Heard both sides and perused the records. 4.1. Learned counsel for the appellant submitted that the impugned orders are not sustainable as the same have been passed without properly appreciating the facts and the law. He further submitted that the appellants are disputing the classification of service under the category of Cargo Handling Service because as per the Agency Agreement entered with the Grasim Industries Ltd., the contract was e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rasim Industries Ltd. but they did not pay the service tax on loading and unloading charges received from the Grasim Industries Ltd. under the bona fide belief that the same are not taxable. In view of the TRU circular dt. 01.08.2002 wherein the said clarification was provided by CBEC as under:- 15. Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour / labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency. 4.3. He further submitted that during the relevant time, the service tax was new and due to the circular issued by the CBEC, appellant entertained a belief that proprietor / individuals providing the activity of loading / unloading of cargo was not liable for payment of service tax and that is why they did not get themselves registered and paid the service tax on loading and unloading service c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the audit. Revenue has also relied upon the following decisions:- i. Maruthi Plastics Vs. CCE, Chennai-I [2019(367) ELT 43 (Mad)] ii. Avtar Sodhi Vs. CCE, Ludhiana [2016(46) STR 547 (Tri. Del.)] iii. NTPC Ltd. Vs. CCE, Raipur [2017(5) GSTL 412 (Tri. Del.)] 6.1. After considering the submissions of both the parties and perusal of the material on record, we find that though in the first round of litigation, the demand was confirmed under the cargo handling service, the said order of the Tribunal was recalled in ROM application and appeal was listed for fresh hearing. Though the Department challenged the recalling of the order before the High Court but High court has dismissed the petition of the Revenue. Since the final order passed by the Tribunal is recalled, the appellant is at liberty to raise all the legal issues. Further we find that in fact going by the principles laid in Section 65A of the Finance Act, 1994, the demand should not have been confirmed under cargo handling service because the essential character of the main activity in the present case is towards transportation charges which is ₹ 53/-pmt whereas loadi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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