2016 (4) TMI 1385 - SC - Service Tax

Supreme Court affirms High Court decision on 'Cargo Handling Service' classification under Finance Act, 1994.

The Deputy Commissioner, Central Excise and Ors. Versus Sushil & Company

The Supreme Court upheld the High Court's judgment, ruling that the services provided by the respondent did not constitute 'Cargo Handling Service' under ... Classification of services - Business Auxiliary Services - Department took a prima facie view that the contract was for the purpose of packing, loading and unloading etc. of the goods, for which labour was supplied by the respondent to M/s Birla Corporation Ltd. - HELD THAT:- The High Court has simply gone by the contract in question, which was entered into between the respondent and M/s Birla Corporation Ltd. and taking into consideration all the averments, which were made in the show cause notice, on the basis of admitted facts, it has come to a conclusion that even when the allegations in the show cause notice are accepted, the said contract does not amount to providing any 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself. 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 provider must independently be involved in loading-unloading or packing-unpacking of the cargo - in the instant case, as per the contract entered into between the respondent and the customer, namely, M/s Birla Corporation Ltd., the respondent was to supply manpower for working at the packing plant as per the customer's requirement. The contractor-respondent was to ensure that manpower deployed on the work given by customer's officers is executed properly, diligently, uninterruptedly and to the satisfaction of the customer in the factory premises of its works. It is significant to note that no part of loading or unloading was assigned to the workers of the respondent-assessee upto 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 Handing 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. The High Court has rightly concluded that the aforesaid services would not fall within the definition of 'Cargo Handing Services'. The conclusion of the High Court that services provided by the respondent-assessee did not amount to Cargo Handling Services and, therefore, no such service tax was leviable is upheld - Appeal dismissed. Issues:1. Interpretation of whether the services provided by the respondent-assessee constitute 'Cargo Handling Service' under the Finance Act, 1994.2. Validity of the High Court's judgment in quashing the show cause notice against the respondent.Analysis:Issue 1: Interpretation of 'Cargo Handling Service'The case involved a dispute where the appellant-department alleged that the respondent was evading service tax by raising separate bills for labor and other expenses, thereby not paying service tax. The High Court quashed the show cause notice, stating that the contract between the respondent and M/s Birla Corporation Ltd. did not amount to providing 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. The Supreme Court upheld this decision, emphasizing that the respondent's services did not meet the criteria for 'Cargo Handling Service' as per the statutory definition. The contract primarily involved supplying manpower for specific tasks at the customer's premises, where loading/unloading was performed by automatic machines, not the respondent's workers. This interpretation aligned with the conditions outlined in the Act for a service to qualify as 'Cargo Handling Service.'Issue 2: Validity of High Court's JudgmentThe appellant-Department argued that the High Court should not have entertained the writ petition, bypassing the statutory adjudicatory process provided under the Act. However, the Supreme Court found that since no disputed questions of fact were involved, and the legal issue could be decided based on admitted facts, the High Court's decision to quash the show cause notice was justified. The High Court's analysis of the contract and the statutory definition of 'Cargo Handling Service' was deemed appropriate, leading to the dismissal of the appeal. Additionally, reference was made to a Tribunal judgment and clarificatory instructions from the Department, further supporting the conclusion that the respondent's services did not fall under 'Cargo Handling Service.'In conclusion, the Supreme Court upheld the High Court's judgment, ruling that the services provided by the respondent did not constitute 'Cargo Handling Service' as per the Finance Act, 1994. The appeal was dismissed, and no costs were awarded.