TaxTMI 
TaxTMI 
2008 (6) TMI 163
X X X X Extracts X X X X
X X X X Extracts X X X X
....3. (Rs.3,35,393/- for the period 16-8-2002 to 13-5-2003 and Rs. 8,05,627/- for the period 14-5-2003 to 30-6-2004) Rs.1.00 lakhs u/s 75A, 76. 77 & 78. 19/96 7-8/ST/B-II/06 dated 27-1-2006 1-7-2004 to 16-9-2004 Rs. 1,41,884/- u/s 73 Rs. 40,000/- u/s 76 & Rs. 1,000/- u/s 77 41/06 (Revision Order u/s 84) 3/ST/Commr/BBSR-II/2006 dated 7-6-2006 16-8-2002 to 30-6-2004 NIL Rs, 11,41,020/- COAL CARRIERS 14 / 06 2-3 /ST/B-II/ 06 dated 24-1-06 16-8-2002 to 30-6-2006 Rs.17,50,030/- u/s 65 & 73. Rs. 500/- u/s 75A & Rs. 1.00 lakh u/s 77 15/06 2-3/ST/B-II/06 dated 24-1-06 1-7-2004 to 31-3-2005 Rs. 1,53,990/- u/s 73 Rs. 40,000/- u/s 76 & Rs. 1,000/- u/s 77 VIJAYALAXMI (PVT.) LTD. 16/06 4-5/ST/ B-II/06 dated 27-1-2006 16-8-2002 to 30-6-2004 Rs. 10,54,477/ - u/s 68 & 73. Rs. 10,54,477/- u/s 75A, 76, 77 & 78 17/06 4-5/ST/B-II/06 dated 27-1-2006 1-7-2004 to 31-3-2005 Rs. 5,56,612/- u/s 73. Rs. 40,000/- u/s 76 and Rs. 1,000/- u/s 77 2. There is common cause in all these appeals relating to taxability of receipt of consideration for services, provided by all the appellants ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ency service". The appellants also sought registration for such activity under the law under the category "Cargo handling service" and consequent upon seeking registration, the appellants have also deposited service tax under the category "cargo handling services". 5. So far as the second issue is concerned, the learned Appellate authority held that the activities carried out by the Appellants brought the appellant to the ambit of tax and penalty was leviable for violation of law. So far as the third issue on limitation is concerned, the ld. Appellate authority held that suppression of fact by the appellants rendered the proceeding not time-barred. 6. Ld. Counsel Shri Kartik Kurmy, appearing on behalf of all the appellants submitted that cause of action in relation to all appeals being common, all the appeals may be heard analogous and disposed commonly. Revenue respondent having no objection, all 7 (seven) appeals are commonly dealt by this common order 7. The learned counsel submitted that the appellants made agreement with Mahanadi Coal Fields Ltd. for hiring of pay loader for transfer of coal into Railway wagons and such hiring does not amount to cargo handling agency ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her the work order nor the agreement provided any support to the Revenue for taxing the appellant in view of the nature of activity being letting out of loading machine. The proceedings initiated were also time-barred when the Department was aware of the activities of the appellant. Levy of penalty was unwarranted since there was no defiance of law made deliberately by the appellant. 10. Shri Loni appearing for Revenue submitted that the appeal orders were properly passed since adjudications were done on the basis of material gathered by Revenue. The cases involve proved suppression of fact and non payment of service tax for which the proceedings were not at all time-barred. Nature of activity carried out by the appellants were rightly classified under the category "cargo handling service" and appropriate service tax and penalties were imposed. For the default to make payment, interest was also chargeable. 11. Heard both sides and perused the record. 12. We have examined the sample agreement dated 22-7-03 produced for examination. That was executed between the first appellant and Mahanadi Coalfields Ltd. The sample work order dated 23-5-03 forming part of the agreement was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of adjudication may be set aside. This does not appeal us for cargo handling done by the Appellant coupled with other contractual obligation of making pay loader available to perform the contract while in cited cases movement of goods within mining area was subject matter and those were only transportation. 14. We had an occasion to deal with the meaning of 'cargo handling service' in an appeal much earlier to this i.e. in the case of I.T.W. India Ltd. v. Commissioner of C. Ex. & Cus, Bhubaneswar - 2007 (8) S.T.R. 490 (Tri-Kol). Section 65(105)(zr) of the Act declared cargo handling service to be "taxable service" w.e.f. 16-8-2002 and that section so far as may be relevant reads as under: (a) "65(105) "taxable service" means any service provided or to be provided, i. xx xx xx xx xx xx xx xx xx (b) (zr) to any person, by a cargo handling agency in relation to cargo handling services;" (c) In view of declaration of law as above, meaning of the term "cargo handling service" was provided by Legislature in Section 65(23) of the Act, which reads as under: (23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes cargo handling se....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be relating to or in relation to cargo handling by a cargo handling agency. The service provided should be integrally or inseparably connected with handling of cargo or attributable thereto without being a mere activity of transportation of such cargo since transport service independent of cargo handling is an exception under the scheme of levy by Section 65(23) of the Act. Thus it can be said that loading, unloading, packing or unpacking of cargo and handling of cargo for freight in special containers or non-containerized freight and service provided by container freight terminal or other freight terminal for all modes of transport are subject matter of taxation under the class "cargo handling service". That apart, any activity incidental to freight of cargo is also liable to be taxed under such class. Mode of transport is irrelevant for incidence of levy once the service provided meets the test of handling of cargo in the manner envisaged by law. It is also not necessary that the cargo should only be meant for transport either by vessel in ships or aircrafts. 17. It was noticed from the agreement of the parties that time was essence of the contract. The nature of activity tha....