TaxTMI 
TaxTMI 
2013 (10) TMI 1440
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....ption Job Code Unit Unit Rate 1. UREA PRODUCT HANDLING & BAGGING Bagging and stitching-including checking 570101101100 METRIC TONNE 3.01 2. UREA PRODUCT HANDLING & BAGGING Wagon Loading -Receiving bags in wagon loading platform through the loader, and loading it into the wagons including the Tally checking. 570102101101 METRIC TONNE 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 TONNE 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 TONNE 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 TONNE 15.83 6. UREA PRODUCT HANDLING & BAGGING Truck Loading - Loading of trucks/tractors directly-through the truck loader including tally checking 5701031....
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....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 CFCL's representative and other related jobs - Godempan-ll 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, torn bags, packing material, etc., to the location marked by CFCL's 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 - Manpower assistance for misc. petty jobs. 570107105101 Mandays 66.75 22. UREA ....
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.... they also argue that the demand is time-barred because they were under the bona fide 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 or 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 v. CCE, Delhi - 2005 (189) E.L.T. 257 (S.C.); (ii) CCE v. Chemphar Drugs and Chemicals - 1989 (40) E.L.T. 276 (S.C.). 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 CFCL which shows details of work done as given in the table in para 1 above. He points out that the entr....
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....d 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 disentitle a party from getting benefit of the Notifications. It is only after Larger Bench held in Namtech Systems Limited v. Commissioner of Central Excise, New Delhi reported in 2000 (115) E.L.T. 238 (Tribunal) that the position has become clear. It is settled law that mere failure to declare does not amount to....
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....oticed 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 Hon'ble Court in para 8 of the order is reproduced below : "8. Aggrieved thereby, the revenue has come up in appeal to this Court. In our opinion, the order of the Tribunal must be sustained. In order to make the demand for duty sustainable beyond a period of six months and up to a period of 5 years in view of the proviso to sub-section 11A of....
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....hile 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 'handicrafts' were 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 Drugs (supra) and similar observations in the case of Padmini Polymers (supra) are being pointed out generally to argue that if an assessee does not do anything to discharge his duty/tax liability and simply keeps quiet, it is not suppression. The interpretation canvassed is probably that unless the assessee has ....
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....acture 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, 1944, 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 equal to the basic price charged by the original manufacturers of the said inputs to Bajaj, and since the additional cost of loading-unloading, freight, etc. was not included in the input supplied to Anurang, there was consequent reduction in ....
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.... - 2010 (255) E.L.T. A13 (S.C.) (ii) Modipon Fibre Company v. 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 suppression" itself cannot be a general rule for reasons as explained below. 8.3 Suppression with intent to evade payment of duty is seldom done by actions leaving trails and therefore the "positive act" that the Apex Court was referring to is not something which can always be dem....
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....unity 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 bona fidely 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 the activity will be covered by the definition. The question whether loadin....
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....d from 10-9-2004 and was 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 ................) Sd/- (Mathew John) Member (Technical) 14. [Per : Archana Wadhwa, Member (J)]. - 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 manpower 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 prov....
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....inal adjudicating authority for their fresh decision on merits, in the light of the Board's Circular as also the decisions of the Tribunal and Hon'ble 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 27-7-2005 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 on 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 th....
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....mitation in the light of the law declared by Hon'ble Supreme Court as also various other decisions and has not referred to any evidences reflecting upon the appellants' mala fide, and keeping in view that the matter stands remanded on merits, I deem it fit to remand the matter back to the original adjudicating authority for reconsideration of the appellants' plea of demand being barred by limitation. 20. Accordingly, I am of the view that the impugned orders are liable to be set aside and the appeal to be remanded for fresh decision on merits as also on limitation. As the matter is being remanded to the original authority for reconsideration on merits, the issue of penalty is also to be re-adjudged by him depending on the outcome of the order on merits and on limitation. Sd/- (Archana Wadhwa) Member (Judicial) DIFFERENCE OF OPINION (i) Whether the appeal has to be rejected on merits as held by learned Member (Technical) or the same is required to be remanded for reconsideration as held by Member (Judicial). (ii) Whether the invocation of longer period of limitation has to be upheld as observed by the le....
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....aras 10 to 12 of the order. 23. While the decision of learned Technical Member is as above, learned Judicial Member recorded that the appellant's arguments were not considered by learned Commissioner (Appeals) for which both appeals were required to be remanded. 24. Shri Mayank Garg, learned Counsel appearing for both appellants submits that when learned Commissioner (Appeals) did not consider the grounds of appeal, learned Judicial Member has rightly directed the appeal to be remanded for reconsideration. It was further submitted that the appellants have merit in their appeals which was not considered by the learned Technical Member for which learned Judicial Member considered it proper to send the matter back for reconsideration. As goods were handled by machine and appellant was merely a manpower supplier, there is no liability under the taxing entry "Cargo Handling". Summarily, learned Counsel supported the order recorded by learned Judicial Member. 25. Revenue supports the findings and conclusion of learned Technical Member. Learned DR says that there is crystal finding of suppression which was not differed by learned Judicial Member. That debarred the ....