2019 (10) TMI 48

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....f convenience, the facts of the appeal No.ST/194/2007 are taken. 2. Briefly the facts of the present case are that the appellant is a proprietory concern and was engaged by M/s. Grasim Industries Ltd. as handling agent at Hubli on various terms and conditions which are enclosed with the appeal paper book and the appellant was required to provide local transportation of goods and also loading and unloading. Appellant was paid Rake Handling (consists of loading, unloading expenses) of Rs. 20/- pmt; local transportation charges of Rs. 53/- pmt and service charges of Rs. 4/- pmt as per the agreement between the parties and the said agreement was renewed from time to time. On 27/07/2004, the Preventive Wing of the Department visited the premises of the appellant and a statement of Mr.Jitendra Agarwal was recorded on the same day who deposed that they were unaware of the incidence of service tax under the category of cargo handling service. In the meantime in the Finance Act, 2004, the Parliament introduced Extraordinary Taxpayer Friedly Scheme for registration of those service providers who have not got themselves registered so far. The scheme aimed to register all service providers ....

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....ing / unloading expenses received by the appellant was confirmed. However this Tribunal was pleased to set aside all the penalties confirmed in the impugned order. As regards the plea of limitation urged by the appellant, the Tribunal did not choose to examine the same. Thereafter appellant filed ROM application seeking the modification of the Final Order on the ground that there was no discussion on the plea of non-applicability of extended period and demands being barred by limitation. The Tribunal allowed the ROM application and recalled the Final Order. Thereafter the Department filed appeal against the Miscellaneous Order allowing the ROM application and recalling the Final order before the Hon'ble High Court of Karnataka and Hon'ble High Court dismissed the appeal of the Department and held that there was no reason to interfere with the Misc. Order dt. 05.05.2009. Further the subsequent appeal ST/744/2009 is for the subsequent period from July 2004 to April 2006 and during this period the appellant was registered as service provider and has been paying service tax on the service charges received from Grasim Industries Ltd. and the appellant did not pay service tax in respect ....

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....following decisions:- i. Tycoons Industries Pvt. Ltd. Vs. CCE [2009-TIOL-1509-CESTAT-KOL] ii. DRS Dilip Road Lines Pvt. Ltd. Vs. CCE [2019-TIOL-1505-CESTAT-HYD] iii. CCE Vs. Arvind Singh Lal Singh [2017(48) STR 63 (Tri. Del.)] iv. CCE Vs. Drolia Electrosteels (P) Ltd. [2016(43) STR 261 (Tri. Del.)] v. Pioneer Builders Ltd. Vs. CCE [2018(15) GSTL 335 (Tri. Hyd.)] 4.2. He further submitted that in the first appeal ST/194/2007, the entire demand is barred by limitation because the period of dispute is from December 2002 to June 2004 and the show-cause notice was issued on 07/05/2005 and during the said period show-cause notice was required to be issued within 6 months from the relevant date. The learned counsel further submitted that during the relevant period, the Government come up with 'Extraordinary Taxpayer Friendly Scheme and the appellant paid the service tax on the service charges received from the Grasim Industries Ltd. but they did not pay the service tax on loading and unloading charges received from the Grasim Industries Ltd. under the bona fide belief that the same are not taxable. In view of the TRU circular dt. 01.08.2002 ....

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....or earlier period, then for the subsequent period, the Revenue cannot claim willful suppression of facts on the part of the appellant. in this regard, he relied upon the following decisions:- i. Nizam Sugar Factory Vs. CCE [2006(197) ELT 465 (SC)] ii. Hyderabad Polymers Pvt. Ltd. Vs. CCE [2004(166) ELT 151 (SC)] iii. ECE Industries Ltd. Vs. CCE [2004(164) ELT 236 (SC)] 5. On the other hand, the learned AR defended the impugned order and submitted that in the first round of litigation, the appellant themselves have admitted that they are rendering 'cargo handling service' and the Tribunal in the first round of appeal has confirmed the demand for the cargo handling service. He further submitted that the extended period has rightly been invoked because the appellant did not inform the Department regarding the activities and it was detected by the Department during the audit. Revenue has also relied upon the following decisions:- i. Maruthi Plastics Vs. CCE, Chennai-I [2019(367) ELT 43 (Mad)] ii. Avtar Sodhi Vs. CCE, Ludhiana [2016(46) STR 547 (Tri. Del.)] iii. NTPC Ltd. Vs. CCE, Raipur [2017(5) GSTL 412 (Tri. Del.)] 6.1. Afte....