TaxTMI 
TaxTMI 
2014 (3) TMI 510
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....00 METRIC TONN 3.01 2. UREA PRODUCT HANDLING & BEGGING Wagon Loading-Receiving bags in wagon loading platform through the loader, and loading it into the wagons including the Tally checking. 570102101101 METRIC TONN 6.30 3. UREA PRODUCT HANDLING & BAGGING Wagon Loading-Manual direct loading of the wagons wherever the wagon loaders are not reaching-including the tally checking 570102102101 METRIC TONN 6.74 4. UREA PRODUCT HANDLING & BAGGING Wagon Loading-Stacking of filled bags on the wagon loading platforms-and loading into the wagons including tally checking 570102103101 METRIC TONN 12.82 5. UREA PRODUCT HANDLING & BAGGING Wagon Loading Loading of the wagon from a distance of 50 feet and above in case the wagon loading are not available due to maintenance etc. including tally checking. 570102104101 METRIC TONN 15.83 6. UREA PRODUCT HANDLING & BAGGING Truck Loading Loading of trucks/tractors directly-through the truck loader including ....
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.... 14.84 16. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs Tarpaulin covering and tying of rope on all sides for open Wagon. 570107102100 Per Wagon 10.38 17. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs Rivet/bolt removal from door, door opening- and closing the door after loading riveting back, tying the seal card, applying lac and putting CFCL siding seal for covered wagons. 570107103101 Per Wagon 10.38 18. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs- Housekeeping and cleaning of bagging plat, building, silo, conveyor, screenhouse surrounding conveyor, conveyor pantry, shifting of urea lamps, torn bags, packing material etc. to the location marked by CFCLs representative and other related jobs-Godempan-II bagging area. 570107104101 Months 88124 19. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs- Housekeeping and cleaning of bagging plat, building, silo, conveyor, screenhouse surrounding conveyor, conveyor pantry, shifting of urea lamps, tom bags, packing material etc. to ....
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.... Vs. CCE, Hyderabad 2007 (7) STR 397 (Tri.-Bang.); 4. The Counsel also argues that the labour force supplied by the Appellants were just supervising various points in an automated conveyer system for loading of cargo into wagons and trucks and has enclosed certain photographs of such handling system. But the description work as in table above does not prove the contentions. At the most the work specified at S. No. 6 and 7 can fit into this category and the photographs submitted appear to relate to these activities. 5. Further, they also argue that the demand is time-barred because they were under the bonafide belief that the activity, they were doing, was not covered by the entry Cargo Handling Services under Finance Act, 1994 and that is the reason why they did not take registration and pay service tax. They argue that mere failure to make declaration does not amount to mis-declaration or wilful suppression. They argue that a positive act to establish either wilful mis-declaration for wilful suppression is a must for invoking the extended period of limitation of five years prescribed under section 73 of Finance Act, 1994. They rely on the following decisions of the Apex Cour....
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....epartment were making regular visits to the factory as per guidelines in force at that time. It is also relevant that these decisions relate to a period when the department was still assessing the returns filed and not to a period of self assessment as of now i.e after May 2000. The relevant facts of the cases quoted and a few other cases are examined below. 7.1 Paras 2 and 3 of the decision in the case of Pahwa Chemicals are extracted below: 2. We find that there is no dispute to the fact that the classification list had been approved by the Sector as well as Range Officer after carrying out verification. Between the Department and the Appellants there had earlier been dispute regarding classification of this product. On 31st October, 1991 Excise Preventive Officers had intercepted one consignment of the Appellants in transit and seized goods which contained labels of foreign brand name. All the RT-12 returns were being regularly filed. The invoices containing description of the goods have all been regularly approved by the Department. 3. The Appellants have all a....
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....lf are cleared for home consumption from one or more factories during the preceding financial year had exceeded Rs. 20 lakhs. 4. The factory had cleared during the period from 1st April, 1980 to 29th October, 1980 (P&P) medicines falling under T.I. 14E valued at Rs. 4,32,050.09. The Central Excise duty payable on the goods removed was Rs. 55,802.01. The respondent filed a declaration for exemption under Notification No. 71/78 dated 1-3-1978, and furnished particulars of only the value of P & P medicines manufactured and cleared by it during the preceding financial year i.e. 1979-80, and the respondent did not furnish the particulars of the value of the goods cleared under Tariff Item 68 during the financial year 1979-80. It was noticed that the manufacturer did not file any declaration under Notification No. 111/78 dated 9-5-1978 claiming exemption from the licensing control. 5. However, on 30th July, 1980 the firm filed a classification list in Respect of P & P medicines claiming exemption under Notification No. 80/80. A show-cause notice was issued to th....
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....duct other than those falling under Tariff Item 14E manufactured by the respondent and this was in the knowledge, according to the Tribunal, of the authorities. These findings of the Tribunal have not been challenged before us or before the Tribunal itself as being based on no evidence.(emphasis supplied) 7.4 Another case which is usually quoted (not quoted in this case) to canvass limitation is that of PADMINI PRODUCTS Vs CCE-1989 (43) E.L.T. 195 (S.C.). In that case the facts were as under: The revenue had issued trade notices indicating that agarbaties were handicrafts and were eligible to the exemption contained in the Notification No. 55/75, dated 1st March, 1975. The appellants at all relevant times were manufacturing agarbatis, dhoop sticks, dhoop coil, dhoop powder falling under Tariff Item No. 68 of the erstwhile Central Excise Tariff. The relevant period involved in the present Civil Appeal is from the year 1979 to 1983-84. The appellants claimed exemption under Notification No. 55/75, dated 1st March, 1975. By the said notification, the Central Government had exempted goods of the description in the Schedule annexed to the notification and falling under Tariff I....
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....nce nor they had disclosed the fact of manufacturing of the aforesaid goods to the department. The aforesaid knowledge of manufacture came to be acquired by the department only subsequently and in view of non-disclosure of such information by the appellant and suppression of relevant facts, the extended period of limitation was rightly invoked by the department. 7.8 CCE Vs Bajaj Auto Ltd -2010 (260) E.L.T. 17 (S.C.) 2. The issue in this appeal relates to the valuation of aluminum castings manufactured by M/s. Anurang Engineering Co. Ltd. (for short Anurang) which in turn is based on the purchase price of aluminum ingots supplied by M/s. Bajaj Auto Ltd., Waluk, Aurangabad (for short Bajaj). Anurang, who is Respondent No. 4 in this appeal, is engaged in the manufacture of aluminium castings, commonly known as handle bar body, crank case clutch, and castings used as motor vehicle parts, classifiable under Chapter sub-heading 8708.00 and 8714.00 of the Central Excise Tariff Act, 1985. Bajaj, the Respondent No. 1, was supplying inputs - aluminum ingots after purchasing the same from other manufacturers to Anurang for the relevant period under the cover of invoices issued under Rul....
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....010 (255) E.L.T. A78 (S.C.) In this case the Tribunal held that for invoking the special time-limit of five years, mentioning of the words fraud or suppressionis not necessary but a mere allegation in the show cause notice pointing to the same is sufficient. The Tribunal also observed that frequent visits by the Central Excise officers and the D3 intimations could not be said to be the ground for non-indication of fraud or suppression. Moreover in view of the fact that classification declaration lists had not been filed by the assessee, the special period of limitation shall be applicable. 7.10 There are more such cases like the following: (i) Box & Carton India Pvt. Ltd. v. Commissioner - 2010 (255) E.L.T. A13 (S.C.) (ii) Modipon Fibre Company Vs. CCE-2007 (218) E.L.T. 8 (S.C.) (This decision is also worth studying because the ruling is to the effect that Suppression is not about making a false declaration but also about not declaring what should be declared.) 8. In view of the above facts in each case certain relevant points are to be noted. 8.1 First point is the observation of the ....
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.... the interest of a sovereign which trusts its subjects to comply with its laws and pay tax has to be safeguarded and it cannot be totally left to the changing minds of the servants of the sovereign. Considering these aspects the matter how bonafide the assesse was, in the facts of a particular case, in not paying the tax due to the sovereign is to be judged. 8.5 If ignorance of law is not a defence a wrong understanding of law can be a much lesser defence. 8.6 It can be seen from all the decisions of the Apex Court that the question of suppression is examined basically with reference to two issues- one whether the department had an opportunity to know about all the relevant matters and secondly whether the assessee had reasonable cause with reference to clarifications issued by the department or decisions given by the court to bonafidely believe that he was not liable to pay the disputed tax. 9. In the case of service tax there are two additional factors involved. Firstly the matter quite often involves intangibles, which can be seen mainly through concerned contracts or through the outcomes of service. The next issue is that because the levy is not administered by taxing ....
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....l to duty evaded is imposed under section 78 of the Finance Act. But no option was given to the assesse to pay 25% of the tax amount as penalty within 30 days of receipt of the order. Following the decision of the Delhi High Court in K. P. Pouches Vs. UOI, such option is given now. Further the penalty under section 76 and 78 are for almost the same offence which principle is recognized by amendment done in section 78 by Finance Act, 2008. It is proper to extend this principle for the past period also. Similarly the penalty under section 75A and 77 also are for almost the same offence. In fact section 75A was omitted from 10-09-2004 and was not in existence when the not in existence when the SCNs were issued. So the penalty under section 75A also is waived. Penalty under section 77 is to be paid. (Pronounced in Court on) PER: ARCHANA WADHWA 14. I have gone through the order proposed by my learned brother and with due respect, I differ with the same. As detailed facts already stands recorded in the said order proposed by my learned brother, the same are not being repeated. 15. As regards the merits of the case, I find that the appellants have taken a categorical stand bef....
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....th the aid of wagon tippling system to be fed in boiler bunkers through conveyor system, cannot be held to be cargo handling services. 17. I find that the lower authorities have not taken into account the detailed submissions made by the appellants, as reproduced above. The order of the Commissioner (Appeals) is silent on the applicability of the Boards Circular relied upon by the appellants and applicability of the Tribunals decision referred supra. As such, I am of the view that the matter should go back to the original adjudicating authority for their fresh decision on merits, in the light of the Boards Circular as also the decisions of the Tribunal and Honble Rajasthan High Court. The order is required to be passed after considering the detailed activities undertaken by the appellants, as appearing in the contract. 18. In any case, I find that the show cause notice stands issued on 27.7.05 for the period August,2004 to July, 2004 and as such is barred by limitation. On going through the order of the Joint Commissioner, I find that he has not discussed the issue of limitation. It is only in the context of imposing penalty under section 78 of the Finance Act that he has obs....