TaxTMI 
TaxTMI 
2008 (6) TMI 626
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....dated 29-10-2007 2002-03 to 2005-06 27,629/- Stitching of sugar bags in sugar house of M/s. BD SSK Ltd. -do- 3. Shri Mahadev Vithal Kamble STR/STC/178/2007 dated 30-10-2007 2002-03 to 2005-06 25,379/- Bailing of bags and loading and unloading of bagasse bales etc. -do- 4. Shri Ramchandra J. Shidruk STR/STC/75/2007 dated 26-10-2007 2004-05 to 2005-06 9,773/- Handling of pressmud with the help of labourers -do- 5. Shri Mahadev Shankar Chavan STR/STC/92/07 dated 26-10-2007 2005-06 4,094/- Bailing of bagasse and loading and unloading of bagasse bales etc. -do- 6. Shri Ajit Sopan Salunkhe STR/STC/168/2007 dated 3-1-2008 2005-06 to 2006/07 2,08,355/- Bagasse collection, bailing, loading and unloading and feeding for M/s. Krishna SSK Ltd. & cleaning activities -do- (Hereinafter referred as the appellants) As all the six Appeals deal with the same issue, i.e. 'cargo handling agency' service as held by the Department, all the appeals are taken together for common order. 2. The brief facts involved in all six appeals are that the all the appellants are engaged in the activities menti....
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....im was in contravention of principle of natural justice. (iv) that the first appellant states that pure transportation of sugar bags from sugar house to godown using his own vehicle within the factory premises of M/s. Balasaheb Desai SSK cannot be treated as "cargo handling agency" service since in the definition of cargo handling service itself pure transportation of goods is specifically excluded; (v) that the appellant at Sl. No. 2 states that stitching of sugar bags is part and parcel of activity which is one of the incidental and ancillary process for completion of manufacture of sugar and hence his activity is correctly treatable as "Business Auxiliary Service" with effect from 16-6-2005; (vi) that appellant at Sl. No. 3 states that the activity of bailing bagasse, loading and unloading of bales etc. with the help of labourers for Balasaheb Desai SSK Ltd. is to be treated as "supply of labour" and hence taxable with effect from 16-6-2005 under "manpower recruitment agency" service ; (vii) that the appellant at Sl. No. 4 states that the activity of handling of press-mud with the help of labourers cannot be treat....
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.....L.T. 721 (S.C.); (xii) that without prejudice to the above, the Department while raising the demands, the principle cum-tax price is not at all followed; that they relied on the following decisions :- (a) Gem Star Enterprises P. Ltd. v. CCE - 2000 (7) S.T.R. 342 (Tri. Bang.) (b) Foster Wheeler Energy Ltd. v. CCE [2007 (7) S.T.R. 443 (T) = 2007 (81) RLT 893 (CESTAT - Ahmd.)]; (xiii) that the Board vide its Circular No. B-11/1/2002 TRU dated 1-8-2002 vide para (15) has clarified that the activities of cargo handling agency services provided by an individual by hiring labourers is not taxable under "Cargo handling Agency" service; 4. PH was granted on 16-6-2008 at 11.00 A.M. S/Shri V.B. Gaikawad and Mukund Nyalkalkar, Advocates, duly authorized by all six appellants, appeared for PH. At the outset, they requested to take all six appeals for common proceedings, as the issue involved in all six appeals is one and the same. In addition to reiterating the submissions made in the appeal memorandums, they also relied on the decision of the Commissioner (Appeals) Pune II in the case of Shri Ashok Bhupal Pa....
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....e six orders are to be termed as 'non-speaking orders'. Inspite of the above shortcomings, neither the appellants nor the Advocates who appeared on behalf of the appellants, have requested for remand. Therefore, all the six appeals are taken for decision on the basis of records and submissions made during the PH. 6. The first appellant (Shri Bharat Haribhau Salunke) is engaged in transportation of sugar from sugarhouse to godown within the factory premises by his own vehicle. The Assistant Commissioner has not given any findings as to how the above service falls under 'cargo handling service'. Whereas the appellant contends that since he is engaged in transporting of sugar within the factory premises, and not involved in loading, unloading of goods, the service carried out by him cannot be classified under 'cargo handling service' in view of the exclusive provision contained under 'cargo handling service'. Besides, the appellant contends that without prejudice to the above, the amount received during the financial year 2005-06 was only Rs. 1,08,186/-, which is less than Rupees four lakhs and thus, the same cannot be taxed. He is correct. Firstly, mere transportation of good....
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....an Salunkhe) activities relate to handling of bagasse. In their cases also, the Assistant Commissioner has not given any findings as to how those activities would fall under 'cargo handling service'. Whereas the 3rd and 5th appellant claim that their activities of bailing of bags, loading and unloading of bagasse bales with the help of labourers should be treated as 'supply of labourers' and hence taxable with effect from 16-6-2005 under "manpower recruitment agency" service. The 6th appellant claims that the activities of unloading of bagassse is the activity in or in relation to the manufacture of sugar and molasses and since the same is for generation of steam and thus, it is the activity during the course of manufacture and utmost it can be treated as "Business Auxiliary Service" with effect from 10-9-2004 and is fully exempted vide Notification No. 08/2005 ST dated 1-3-2005. All the three appellants further claim that as per the Board's Circular No. B-11/1/2002 TRU dated 1-8-2002, it has been clarified at para (15) that the activities i.e. 'cargo handling service' provided by an individual by hiring labourers is not taxable under 'cargo handling service'. 8.1 From the ....
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....rom the above, it could be seen that the definition underwent a change with effect from 16-6-2005 by inserting the words "supply of manpower temporarily or otherwise, to tax service provider who is supplier of manpower temporarily or otherwise and should also be a "commercial concern". But in the present case, the persons engaged were individuals who supplied manpower to the sugar factories. Only with effect from 1-5-2006, the term "commercial concern" was substituted by the term "any person". Thus, only with effect from 1-5-2006, the activities of the above three appellants would fall under "manpower recruitment & supply agency" service and not before that. As all the demands are prior to 1-5-2006 (i.e. 2005-06), there cannot be any demand from the above three appellants under "manpower recruitment & supply agency" service also. Besides, there cannot be any demand under "Business Auxiliary Services" also as claimed by the sixth appellant since the same is exempt in terms of Notification No. 08/2005 ST dated 1-3-2005. 8.3 The 6th appellant was also charged for cleaning services during the year 2006-07. However, as the amount involved is less than a lakh and his other activi....