9911796707
TMI Blog2024 (8) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued without specifying the nature of activity carried out by the appellant-assessee and without classifying the service under any particular category of taxable service. The entire demand has been raised in the Notice on the basis of comparison of the figures as reflected in their Balance Sheet, profit and loss account and S.T.-3 Returns, for the period from 2008-09 to 2012-13. The demand of Service Tax by comparing the turnover found in the Profit Loss Accounts/Balance Sheets/Bank Statements with that of the ST-3 Returns, without proper inquiry/investigation carried out by the Revenue and without any admissible evidence, is not sustainable - the submission of the appellant-assessee agreed upon that the demands confirmed in the impugned order without quantifying the service tax liability under each category of taxable service is not sustainable. Demand of Service Tax under the category of cargo handling service - Cargo handling service or manpower supply service? - appellant-assessee contended that they have only supplied manpower for the purpose of loading of cement in the trucks and wagons - HELD THAT:- A similar issue, in their own case for the earlier period, has already been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assed by the Commissioner, Customs, Central Excise Service Tax Commissionerate, Durgapur. 1.1. Service Tax Appeal No. 75935 of 2016 has been filed by the appellant-assessee, M/s. Sen Brothers, Angadpur, Burdwan, West Bengal, against the confirmation of demands of duty, interest and penalty on them. 1.2. Service Tax Appeal No. 75979 of 2016 - has been filed by the Revenue against the dropping the demand in the impugned order by the ld. adjudicating authority. 1.3. As both the appeals are filed against the common Order-in-Original, they are taken up together for decision by a common order. The demands of Service Tax, Interest and Penalties involved in both the appeals are summarized below: Sl. Appeal Nos. Period ST (including cesses) and penalties. 1 M/s. Sen Brothers Appeal No. ST/75935/2016 2008-09 to 2012-13 Service Tax-Rs. 2,46,75,336/- Interest- u/s 75, Penalty- Rs.2,51,00,821/-u/s 78 further Penalty u/s 77. 2 Department s Appeal No.ST/75979/2016. Service Tax-Rs.3,74,75,898/- Interest- u/s 75; Penalty- u/s 78. 2. The appellant-assessee, M/s. Sen Brothers, is a proprietorship firm engaged in providing manpower recruitment or supply agency service and construction service . The ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1)(c) and late fine in terms of Rule 7C of the Service Tax Rules, 1994. He has dropped the remaining demands raised in the Notice. 5. Aggrieved against the impugned order, the present appeals have been filed by both the sides. 6. The appellant-assessee submits that the Show Cause Notice was issued without specifying the nature of activity carried out by them and without classifying the service under any particular category of taxable service. They have pointed out that the entire demand in the Notice has been raised under the category of 'Cargo Handling Service'. However, the impugned order discussed the service tax liability of the appellant-assessee on the 'construction service rendered by them without quantifying the service tax liability on the 'construction service'; it is a settled law that no service tax liability can be fastened on unidentified service. Accordingly, they submit that the demands confirmed in the impugned order are not sustainable on this ground alone. 6.1. In support of this contention, the appellant-assessee relied upon the following decisions: (i) Prakash Road Lines vs. Commissioner Of Central Excise, Customs and Service Tax [2022-TIOL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial Construction Service , in view of the exemption provided under the Notification No. 25/2012-ST, dated 20.06.2012 and therefore, no Service Tax is payable. However, the assessee-respondent has stated that the Ld. Commissioner has not given any finding regarding the same service provided to BIT, Mesra. In this regard, the assessee submits that there is no such allegation in the Show Cause Notice regarding the liability of service tax on the 'construction service' rendered by the assessee to M/s.BIT, Mesra; the Department in its appeal has accepted that the Commercial or Industrial Construction Service provided to IIT, Kharagpur and NIT, Durgapur are exempt, but contended that the same service provided to BIT, Mesra, cannot get the same benefit of exemption under the Notification No. 25/2012-ST, dated 20.06.2012 since it cannot be termed as Government educational Institution. In this regard, the assessee submits that in the entire Show Cause Notice, there is no whisper about the Commercial or Industrial Construction Service provided to BIT, Mesra and thus there was no proposal in the Show Cause Notice for charging service tax in respect of the service provided to BIT, Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d issuance of demand under any judicial pronouncement. Instead of proving the existence of distinct elements, to fasten tax liability, like service provider, classification of service rendered, service recipient and consideration received, the department cannot just rely on figures culled from Income Tax Returns, 26AS Statement, balance sheet, profit and loss account etc. The impugned order has seriously erred in confirming the duty liability simply on the basis of the figures obtained from documents like Income Tax Returns etc. without causing a bare minimum enquiry with all the concerned parties [Emphasis supplied] 11.2. We also observe that in the case of M/s. Indian Machine Tools Manufacturers Association Vs. The Commissioner of Central Excise [2024-TIOL-133-CESTAT-CHD], it has been held as under: 11. Coming to third and final issue as to whether any demand can be sustained on the basis of difference between the figures of ST-3 Returns and the balance sheets,we find that it is a settled principle of law that service tax can be levied only when there is a clear identification of service provider, service recipient and consideration paid for the same. In the absence of any such e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be charged service tax under Cargo Handling Services . We have examined the impugned order. The following observations in Para 5 of the said order is crucial to the finding of the case : Maihar Cement is having a completely automatic plant, from the stage of production of cement up to its delivery. Packed Cement bags automatically move on conveyer belt for loading into trucks or wagons. Labourers are required to keep watch on production, packing delivery of cement and arranging the bags systematically in trucks and wagons. They are not required to carry or load the cement manually in truck/wagons. The bags are simply pushed for storage. These type of activities are not covered under the activity of Cargo Handling Services, as held by the Tribunal in the matter of M/s. J. J. Enterprises v. CCE- 2006 (3) S.T.R. 655 (Tri.-Del.) . 6. Ld. Commissioner (Appeals) also observed that he had seen, through CD provided by the respondent, the actual process of packing and loading in the cement factory. He noted that all these activities are done automatically by machinery and conveyor owned by the cement manufacturer. The manpower supplied by the respondent is for mainly supervising and suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that no part of loading or unloading was assigned to the workers of the respondent-assessee up to transportation of the cement bags out of the factory. This work was, in fact, been performed by the automatic machines. It is through these automatic machines, the cement bags were loaded, unloaded, packed or unpacked and this included Cargo Handling Services 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, but does not include handling of export cargo or passenger baggage or mere transportation of goods. 10. On the reading of the aforesaid contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court has rightly concluded that the aforesaid services would not fall within the definition of Cargo Handling Services‟. [ Emphasis supplied ] 10. The facts in the present case are identical. Therefore, we do not see any necessity to take a different view. Respectfully following the cited case law, we allow the Appeals on merits. 12.1. Following the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not sustainable, the question of demanding interest and imposing penalty on this demand does not arise. 13.3. We also observe that the ld. adjudicating authority has imposed various penalties under Sections 77(1)(a), 77(1)(b) and 77(1)(c) of the Finance Act, 1994 as well as Rule 7C of the Service Tax Rules, 1994 as the assessee have failed to take registration and not filed returns in respect of the services rendered. As the services rendered by the assessee have been held to be not liable to Service Tax under the category of cargo handling service , we hold that no penalty is imposable under Sections 77(1)(a), 77(1)(b) and 77(1)(c) and Rule 7C ibid. 14. In view of the above, we set aside the impugned order and allow the appeal filed by the appellant-assessee. 15. Regarding the appeal filed by the Revenue, it is observed that the Revenue has mainly filed the said appeal against extending the benefit of Notification No. 25/2012-S.T. dated 20.06.2012 for the construction services rendered to M/s. Birla Institute of Technology (BIT), Mesra, as it is a commercial concern. 15.1. We observe that the Show Cause Notice has demanded Service Tax only under the category of cargo handling ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
