TaxTMI 
TaxTMI 
2014 (3) TMI 510
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....G 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 tally checking 570103101101 METRIC TONN 4.03 7. UREA PRODUCT HANDLING & BAGGING Truck Loading Loading of trucks/tractors d....
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....e 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 the location marked by CFCLs representative and other related jobs-Godempan-II bagging area. 570107104102 Months 39164 20. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs- Housekeeping and cleaning of track to keep track free from coal/debris 570107104103 Days 920.00 21. UREA PRODUCT HANDLING & BAGGING Miscellaneous Jobs- Manpowe....
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....ographs 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 Court: (i) Pahwa Chemicals Private Limited Vs. CCE, Delhi 2005 (189) ELT 257 (SC); (ii) CCE Vs. Chemphar Drugs and Chemicals 1989 (40) ELT 276 (SC). Thus the counsel argues that the demand is not sustainable both on account of merits and on account of time-bar. 4. The Ld. DR, on the other hand places reliance on the contract between the Appellants and the CF....
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....; 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 along claimed that merely because they were affixing the label of a foreign party, they did not lose the benefit of Notification No. 175/86-C.E. as amended by Notification No. 1/93-C.E. The view taken by the Appellants had, in some cases, been approved by the Tribunal which had held that mere use of the name of a foreign party did not dis-entitle a party from getting benefit of the Notifications. It is only after Larger Bench held in Namtech Systems Limited v. Commissioner of Central Ex....
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....d 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 the respondent who was asked to explain as to why excise duty in respect of Patent and Proprietary medicines manufactured and cleared by it should not be demanded under proviso (a) to Rule 10(1) of the Central Excise Rules and why penalty should not be imposed on it under Rule 173Q of the Central Excise Rules, 1944 for having cleared the goods without payment of duty in contravention of Rule 173Q (a) and (d) of the Central Excise Rules. 7.3 In the context of the above facts the findings of the Ho....
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....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 Item 68 of the First Schedule to the Act from the whole of duty of excise leviable thereon. In the Serial No. 8 of the Schedule to the said notification, Handicrafts were listed. It is, therefore, clear that handicraftswere fully exempt from payment of duty of excise, according to the appellants. Under the Notification No. 111/78, dated 9th May, 1978, the appellants were exempted from licensing control. That is the case of the appellants. 7.5 The sentence underlined in the extracts of the case of Chemphar....
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....ng 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 Rule 57F(2) and Rule 57(3) of the Central Excise Rules, 1994, after reversing the MODVAT credit availed on the said input. 3. A show cause notice dated 5-3-2001 was issued by the Commissioner of Customs and Central Excise, Aurangabad, in which it was alleged that Anurang was receiving inputs from Bajaj at an undervalued landed cost by not including expenses on account of sales tax, octroi, freight, insurance, loading unloading charges and handling charges, and that Bajaj was charging only the basic price of such inputs equ....
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....he 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 Apex Court in the case of para 8 of Chemphar Drugs (supra) as under: Whether in a particular set of facts and circumstances there was any fraud or collusion or wilful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 8.2 If there cannot be general rule, the rule of positive act of suppressionitself cannot be a general rule for reasons as explained below. 8.3 Suppression with intent to evade payment of duty is seldom done by action....
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.... 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 all services and exempting specified services but by a system of taxing specified services. These factors, can in the facts of some cases, persuade a judicial mind to conclude that there was no wilful suppression. 10. Now let us consider the facts of the present case. At least 15 out of the 22 items of work specified are about loading of cargo. Some of the other items of work also have nexus to such cargo handling. The definition of the relevant entry in Finance Act, 1994 covers loading as also of unloading of cargo. By a simple understanding of the matter ....
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....t 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 before the authorities below that they have only provided labour/ labourers to do the work of sealing of bags and loading and unloading of wagons. As such, they are man power supplier agency and the entire loading and unloading or packing work is fully mechanized. They have further submitted that automatic filling machine and conveyor carries bags and loader machines are in the ownership of CFCL and they have no control on the said machinery. Packing and loading activity was, in fact, continuous process to the manufacturing of Urea and the labourer provided by the appellant w....
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....erits, 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 observed that the assessee had wilfully suppressed the fact for providing services to the customers with intention to evade payment of service tax and as such they are liable to penalty under the said section. Similarly, I find that the Commissioner (Appeals) has also not given any finding no the issue of time bar, though this specific ground, was raised in the memo of appeal. 19. Learned Advocate appearing for the applicant has strongly contested the demand on the point of limitation by submitting that the extended period of limitation is available to the Revenue in case fraud, c....