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TMI Blog2008 (10) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... or hearing with the consent of both the sides for disposal by a common order. S.No. Appeal No. OIO/OIA No. date S.C.N. date Amount of tax (in Rs.) Penalty (in Rs.) Period Involved 1. ST/62/2007 20/2006 Commr. dt. 8-11-2006 6-4-2006 2,25,19,764 74,21,738 2,25,19,764 +Rs. 200 per day 16-10-2006 to 31-3-2005 2. ST/71/2007 22/2006 Commr. dt. 30-11-2006 16-10-2006 1,39,67,579 Nil 1-4-2005 to31-3-2006 3. ST/47/2008 8/2007 Commr. dt. 20-12-2007 16-10-2006 77,86,215 Nil 1-4-2006 to 30-9-2006 4. ST/99/2007 OIA No. 06/2006 dt. 18-11-2006 24-1-2006, 24-1-2006 24-2-2006 Refund: 29,01,053 5,99,525 5,38,104 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in their registration certificate. The Additional Commissioner had accepted the contention of the appellants and accorded permission for incorporation of the new service into the Registration Certificate. Therefore the appellants paid the service tax on packaging jobs under the category of 'Business Auxiliary Service' with effect from 1-4-2005 to 31-8-2005 and thereafter, they paid the service tax under the category of 'packaging service' with effect from 1-9-2005. The show-cause notices' details are given above. All the show-cause notices have been issued for different periods only on one issue. The issue is the nature of the taxable services rendered by the appellants. The show-cause notices cover a period from 16-8-2002 to 30-9-2006. There are, in fact, four show-cause notices. In respect of two show-cause notices, one Order-in-Original has been issued. In respect of the other two show-cause notices, two Orders-in-Original have been issued. Therefore they are in all four show-cause notices and there are three Orders-in-Original. The service tax has been confirmed by the learned Commissioner under the category of 'cargo handling services'. Wherever th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainer Corporation of India, Airports Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services. 3.1 The services provided in relation to export cargo and passenger baggage are excluded from tax net. 3.2 Mere transportation of goods is not covered in the category of cargo handling and is therefore not liable to service tax. [Emphasis supplied] It was urged that the use of the expression 'cargo handling agency' in the definitions made, the main business of service provider has to be cargo handling. A manufacturer or packer undertaking the activity of loading or unloading does not pick up the 'cargo handling agency'. This is evidence from Para 3 of the above circular and also from the decision of the Tribunal in the case of Jet Airways v. CST [Appeal No. ST/122 of 2007, dated 9-6-2008] and in the case of S.N Uppar Co. v. CCE [2007] 7 STT 7 (Bang.-CESTAT). The learned Advocate stated quoting from the various dictionaries that the cargo means - the goods carried by a ship or aeroplane or any load to be carried . H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are not covered by this description. It was also submitted that subsequent amendments can be taken as a guide to decide the scope of a taxable activity in view of the judgment of the Hon'ble Supreme Court in the case of Pasupuleti Venkateswarlu v. Motor General Traders [1975] 1 SCC 770 and the Tribunal's decision in the case of Pioma Industries v. CCE 1995 (77) ELT 424 (New Delhi-Trib.). 6. The learned Senior Departmental Representative referred to the decision of Kolkata Tribunal in the appellant's own case in ITW India Ltd.'s case (supra) wherein it was held that the appellants are providing cargo handling service. She submitted that the ratio of the cited judgment is clearly applicable to the facts of the present case and therefore, requested the Bench to bound to follow the same. 7. The learned Counsel submitted that Kolkata Bench's decision, even though it is in the party's own case, is distinguishable in view of the certain factors. The Tribunal, according to him, has not examined whether the appellants can in the first place be at all considered as a cargo handling-agency. The Tribunal has not considered the fact that only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim of the appellant that they are not undertaking any loading or unloading service or is in any way concerned with the actual transportation of the goods. The appellant is providing only packaging services on the production line of their clients. Moreover the goods in respect of which the packaging services being provided has still not taken the form of cargo as normally understood in trade parlance. It was also submitted that the finding that the appellants got registered and started paying service tax under the category of 'Business Auxiliary Service' with effect from 10-9-2004 is contrary to the appellant's claim that they are classifiable under 'packaging services' for the simple reason that the mere fact that the appellant chose to pay service tax earlier under Business Auxiliary Services' does not mean that the services are not classifiable under packaging activity'. The point that there is no estoppel against the assessee in such situations. Since packaging service was subsequently specifically made taxable, it cannot be taxed during the period prior to its inclusion. The following case laws are relied on :- (i) Balaji Enterprises v. CCE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Ltd., Ispat Industries Ltd. and Steelco Gujarat Ltd. have to be excluded as the work relates to Export Container Lashing. It was submitted that export cargo cannot be covered under cargo handling service and the same was upheld in CCE v. Kanara Export Agencies [ST/Stay No. 150 of 2006, dated 28-11-2006]. 14. The extended period provided in section 73 of the Finance Act cannot be invoked in this case on the grounds of suppression of facts, fraud, etc. It is not the case of the Department that the appellant has not filed the prescribed return under section 70. The appellants in their letter dated 19-8-2005 brought all the facts to the notice of the Department about the different show-cause notices issued in different Commissionerates, which was not within the knowledge of the Hyderabad Central Excise Department. As the appellants themselves had brought the dispute to the notice of the department, it cannot be charged with suppressing any facts. Moreover there are varying decision of cargo handling and the Commissioner of Central Excise Customs (Appeals-I), Hyderabad vide Order-in-Appeal No. 06/2006 (H-I) Service Tax. dated 18-11-2006 has accepted that service tax on pack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant does not undertake the activity of transportation. The definition of the 'cargo handling service' includes various activities and even in terms of the Board's Circular and also the decision of the Hon'ble Rajasthan High Court, it cannot be said that the appellant undertakes the service of cargo handling in the absence of transportation. Even the later amendment has linked 'cargo handling' as service of 'packaging' together with transportation of cargo. From this it is very clear that transportation is also a must in the case of 'cargo handling'. The learned Advocate has rightly distinguished the decision of the Kolkata Bench where several aspects have not been considered by the Tribunal. Once it is held that the activity of the appellant amounts to 'packaging' then it is very clear that it cannot be taxed prior to 16-6-2005 for any other category, because the activity of the packaging rendered by the appellant came into service tax net only with effect from 16-6-2005. Therefore it is very clear that when the service tax is liable only from 16-6-2005 under the taxable category of packaging activity, it could not have been taxed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellants would be covered under the category of 'packaging service' with effect from 16-6-2005 and for the prior period, they would not be covered under any other category of the taxable service and therefore, he allowed the refund claims. But while allowing the refund, he has remanded the matter to the Original Authority for verifying the unjust enrichment aspect. 20. The party is aggrieved over the impugned order of the Commissioner (Appeals) on the ground that the cases need not have been remanded to the Original Authority. They had already received letters from their customers to the effect that the party has not passed on the burden of the tax to their customers. Moreover during the relevant period, it was argued that when there was no liability to service tax, the tax collected without any authority is liable to be refunded. He relied on the Maftalal decision case. It was also stated that in the show-cause notice, unjust enrichment aspect was not indicated and therefore the same should not have been examined by the Commissioner (Appeals). Further it was urged that the Commissioner (Appeals) has gone beyond the scope of the show-cause notice. 21. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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