TaxTMI 
TaxTMI 
TaxTMI 
2014 (7) TMI 709
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.... be classified as Cargo Handling Service or not, had come up before the Tribunal and this Tribunal in Final Order No. 20024/2014 dated 01.01.2014, had considered the issue and remanded the matter for fresh decision and submits that in this case also since the work order issued to the appellant is similar to the one which was considered in that case, on this issue the matter may be remanded at this stage itself in the case of the appellant also. We have considered the submissions and we find that in para 7 of the order cited by the learned counsel, the Tribunal had made the following observations: 7. As regards the demand of service tax under the category of Business Support Service, Section 65 (104c) of the Act defines the said service as follows:- Support service of business or commerce means services provided in relation to business or commerce and includes evaluation of prospective customers, telemarketing, processing of purchase orders and fulfillment services, information and tracking of delivery schedules, managing distribution and logistics, customer relationship management services, accounting and processing of transactions, operational assistance for marketing, for....
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....y, that the same is proper appreciation of fact and material evidence on record. 22. The Assessing Officer has referred to Section 65(23) of the Finance Act and recorded his findings holding that three things are analyzed i.e. (1) What are the criteria of the services to be included in the "Cargo Handling Services". (2) The nature of job entrusted to the noticee in the contract agreement/Work Order and (3) The submissions made by the noticee in reply to show cause notice and answered with reference to the meaning of "Cargo" viz. the term cargo means "the load" (i.e. freight) of a vessel, train, truck, aeroplane or other carrier (Black's Law Dictionary). Thus the goods, which are meant for transportation from one place to another by any mode of transport, are known as cargo. Therefore, the Assessing Officer has held the goods which were meant for transpiration from one place to another by any mode of transport is known as cargo. The meaning of "loading" - the term loading in the present context means the act of putting a load on or in as to load a car or a vessel. The act of loading invariably takes place at the starting place of the journey of the cargo. The meaning of "Unloa....
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....noticee should have to maintain complete record of coal loading made by the notice separately and such records should be produced whenever required by the authorized representative of the department. 4. While loading the noticee will ensure that the railway track in the siding is not blocked/no coal is spilled on the track/drain. It is the responsibility of the noticee to see that the railway track/drain in the siding is kept properly clean as per prevalent Railway Rules after loading of wagons are completed. If the management has to incur any demurrage due to above reasons the same shall be recovered from the bill. Expenditure, if any incurred for cleaning by the management shall be on noticee's account. 5. Loading of rake of 58-N Box to the specific height as required will have to be completed as stipulated in the tender document i.e. within 2.00 hrs. in the siding No. lll from the time of placement of the empty rake by railways including wagon cleaning, door closing, leaving of coal and lime washing. An additional time not exceeding 45 minutes for completing the rake will be allowed. In case of failure to load the 58-N Box in the above allotted time period, the notice shal....
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....tegories under the heading transportation, the learned Commissioner has proceeded to classify it under 'Cargo Handling'. We are very conscious of the fact that the Tribunal is the last fact finding body in the dispute resolution mechanism for indirect tax levy by Central Government and therefore we should be treading carefully when recording our findings of facts and this cannot be done in a hurry. When another Bench has already remanded the matter in similar circumstances and when all the activities of the appellant have been painted with single colour without seeing whether there is a difference or not, and without recording the fact and without indicating why all of them should be covered under one category of service, if we have to take a different view, it would require a very detailed appreciation of facts, documents and records, statutory provisions. Therefore in our opinion it would be prudent on our part and also the judicial discipline also requires that we should follow the decision of the coordinate Bench which has remanded the matter on this issue. Therefore we are unable to accept the submissions of the learned AR. 4.3. The second demand is for Rs. 1,69,160/- under B....
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....t CENVAT credit on input services attributable to 'trading' activity is not allowed. He observed that assessee did not maintain separate accounts for taxable output service and for trading activity also did not exercise any of the options provided in CENVAT Credit Rules, therefore the assessee is liable to pay 8% and 6% as proposed. While coming to this conclusion he has relied upon the decision in the case of M/s. Orion Appliances Ltd. Vs. CST, Ahmedabad [2010-TIOL-752-CESTAT-AHM.]. We find that the conclusion reached by the learned Commissioner is not supported by the decision or the ratio of the decision in the case of M/s. Orion Appliances Ltd. In that decision the Tribunal had taken the view that prior to amendment of definition of 'trading' and treating it as an exempted service, trading cannot be considered as a service at all. When trading is not a service, it cannot be treated as an exempted service. Therefore it was held that if the assessee reversed proportionate credit attributable to the trading activity according to standard accounting principles that would be sufficient and there would be nothing to deposit 8%/6% (as in the present case) of the value of the traded go....