2010 (1) TMI 302 - AT - Service Tax

Appeal Success: Partial Victory on Service Tax, Penalties Upheld

The Tribunal partially allowed the appeal regarding the confirmation of demand for Service tax on Cargo Handling Service. The demand for the period from ... Limitation- The assessees were rendering Cargo Handling Service, and imposition of penalty under the provisions of Section 76 & 77 of the Finance Act, 1994. Held that- accept the contention of the assessees that the demand for the period up to 31-1-2004 is barred by limitation. The demand for the period from February 2004 to 12-10-2004 is upheld and required to be requantified, for which purpose the case is remanded to the adjudicating authority. Since, part of the demand is upheld Issues:Confirmation of demand of Service tax for Cargo Handling Service, imposition of penalty under Sections 76 & 77 of the Finance Act, 1994, applicability of limitation period.Analysis:The judgment dealt with an appeal against the confirmation of demand of Service tax on the basis that the assessees were providing Cargo Handling Service, along with the imposition of penalties under Sections 76 and 77 of the Finance Act, 1994. The Tribunal considered the merits of the case and referred to a previous decision in the case of J.K. Transport v. CCE, Raipur, where it was held that a proprietary firm could be considered an individual undertaking cargo handling services. However, the Tribunal acknowledged the assessees' argument regarding the limitation period for the demand. The Tribunal found that the demand for the period from August 2002 to January 31, 2004, was barred by limitation as the show cause notice did not invoke the proviso to Section 73(1)(a) or establish suppression/misdeclaration with intent to evade payment of duty for the extended period to apply. Since the show cause notice was dated January 31, 2005, for a period up to October 12, 2004, the demand up to January 31, 2004, was considered time-barred. The demand for the period from February 2004 to October 12, 2004, was upheld, and the case was remanded to the adjudicating authority for requantification. Consequently, the imposition of penalties under Sections 76 and 77 was also upheld for the upheld demand, as ordered by the Tribunal. The appeal was partly allowed based on these considerations.