TaxTMI 
TaxTMI 
2009 (7) TMI 1086
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....the above facts, the first appellant was issued with a SCN dated 20-9-2007 and the second appellant was issued with a SCN dated 21-9-2007 directing them to show cause as to why the Service tax amount of Rs. 1,67,089/- in the case of first appellant and Rs. 2,66,961/- in the case of second appellant under Section 73 of the Finance Act, 1994 (hereinafter referred as the Act) should not be demanded, interest under Section 75 of the Act should not be confirmed; that it was also proposed to impose penalty under Sections 76, 77 and 78 of the Act; that on adjudication, the demands raised in the SCN-cum-Demand Notices were confirmed along with interest, besides imposing penalties separately under Sections 76, 77 and 78 for having failed to take registration, delay in payment of Service tax, non-filing of returns and suppressing the facts with intent to evade payment of Service tax; that it was further held that the activities carried out by the appellants are covered under the category of 'cargo handing services' and not under 'man power recruitment & supply agency service'. 2. Being aggrieved by the above orders, the appellants have come up with the present appeals along with stay peti....
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.... (a) Padmini Products v. CCE - 1989 (43) E.L.T. 195 (S.C.) (b) Cosmic Dye Chemicals v. CCE - 1995 (75) E.L.T. 721, (c) NRC Ltd. v. CCE - 2007 (5) S.T.R. 308 = 2007 (209) E.L.T. 22 (Tribunal), and (d) CCE v. Ganpati Motors - 2008 (12) S.T.R. 729; (vi) that in the case of second appellant, the department has acquired knowledge of the activities in the month, 2006 itself, whereas the department has issued the SCN on 21-9-2007 and hence the SCN is time barred as held by the Tribunal in the following cases - (a) Lovely Food Industries v. CCE - 2006 (195) E.L.T. 90, (b) Jetex Cab v. CCE - 2007 (5) S.T.R. 446 (Tribunal) = 2007 (210) E.L.T. 73 (Tribunal) = 2007 (78) RLT 682 and (c) Shree Renuka Sugars Ltd. v. CCE - 2007 (210) E.L.T. 385; (vii) that as the issue involved in interpretation, there is no scope to hold the appellant with guilty intention to evade payment of tax and hence the extended period is not available to the department and the appellant relies on the following decisions - (a) K.K. Appachan v. CCE - 2007 (7) S.T.R. 230, (b) Homa Engineering Works v. CCE - 2007 (7) S.T.R. 546 = 2007 (81) RLT 313. 3. PH was held on 6-7-2009 at 04.30 PM. Sh....
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....asse, loading and unloading of bagasse etc. and transportation of sugar bagasse within the factory premises would come under 'cargo handing agency service' or not. The Assistant Commissioner has not given any findings in the impugned OIOs with reference to actual activities viz-a-viz the definition available under the Act. In fact, the Assistant Commissioner has concluded that no definition for 'cargo handling service' is available either in the Act or rules made thereunder and accordingly, he has referred the dictionary meaning for the term "agency" and accordingly, concluded that the activities of the appellants as contractors fall under the category of 'cargo handling service'. The above conclusion is wrong in as much as that the term 'cargo handling agency service' has been defined under Section 65(23) of the Finance Act, 1994, Such is a fatal error committed by the Assistant Commissioner in both the orders. On this ground alone, the impugned orders are not sustainable in the eyes of the law. 4.2 The meaning of 'cargo handling agency service which was brought under the Service Tax net vide Notification No. 8/2002-S.T., dated 1-8-2002 with effect from 16-8-2002 is reproduced ....
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....ctivities of the appellants provided as an individual capacity cannot be brought under cargo handling service. In this regard, there is no doubt that S/Shri Vishwajit Hambirrao Patil and Baburao Nivrutti Patil are individuals, in as much as the appeals are filed by the appellants in individual capacity and therefore, the Board's Circular referred above fully support the appellants' views. In view of the above discussions, I hold that the appellants' activities would not fall under cargo handling service. 4.4 In addition to the above, it is the claim of the second appellant that the department for the period covering from 2005-06 to 2007-08 issued another SCN-cum-Demand Notice dated 8-10-2008 demanding Service tax and education cess treating the activities of the appellant as covered under 'manpower recruitment and supply agency service'. According to the appellant that the above fact is sufficient to prove that the department itself is not sure about the classification either to bring his service under 'cargo handling service' or 'manpower recruitment and supply agency service'. In this regard, I have gone through the SCN dated 8-10-2008 wherein the appellant was directed to sho....