TaxTMI 
TaxTMI 
2008 (10) TMI 82
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....006 to 31-3-2005 2. ST/71/2007 22/2006 Commr. dt. 30-11-2006 16-10-2006 1,39,67,579 Nil 1-4-2005 to31-3-2006 3. ST/47/2008 8/2007 Commr. dt. 20-12-2007 16-10-2006 77,86,215 Nil 1-4-2006 to 30-9-2006 4. ST/99/2007 OIA No. 06/2006 dt. 18-11-2006 24-1-2006, 24-1-2006 & 24-2-2006 Refund: 29,01,053 5,99,525 5,38,104 - 20-11-2004 to 31-7-2005; 30-11-2004 to 25-2-2005 & 31-12-2004to 29-6-2005 5. ST/110/2007 (Revenue's Appeal) OIA No. 06/2006 dt. 18-11-2006 24-1-2006 - - 20-11-2004 to 31-7-2005 2. Shri G. Shivadass, learned Advocate appeared on behalf of the appellants and Ms. Sudha Koka, learned SDR for the revenue. We heard both the sides. Appeal No. 62/2007, 71/2007 and 47/2008 3. The revenue proceeded against the appellants by issue of show-cause notices. According to the revenue, the activities undertaken by the appellants, M/s. ITW India Ltd., namely packaging unitization, strapping, loading of coils, seals, attending improper straps and seal feed and offline strapping are for transportation by any m....
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....been issued. In respect of the other two show-cause notices, two Orders-in-Original have been issued. Therefore they are in all four show-cause notices and there are three Orders-in-Original. The service tax has been confirmed by the learned Commissioner under the category of 'cargo handling services'. Wherever the appellants had paid money under the category of 'Business Auxiliary Services', the same had been adjusted for payment towards 'cargo handling service'. The decisions of the Commissioner in all these appeals are under challenge. 5. The following submissions were made by the learned Advocate: (i) the appellant has not provided any cargo handling agency's service (ii) The decision of the Calcutta Tribunal in the appellant's case in ITW India Ltd. v. CCE&C [2008] 12 STT 249 (Kol.- CESTAT) is completely distinguished. (iii) the appellants were paying service tax under packaging service. (iv) the Order-in-Original has wrongly adjusted the service tax paid under one category towards another. (v) Excise duty has already been paid on the same amount. (vi) the manner of calculation of the tax liability is incorrect. (vii) the....
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.... the case of Jet Airways v. CST [Appeal No. ST/122 of 2007, dated 9-6-2008] and in the case of S.N Uppar & Co. v. CCE [2007] 7 STT 7 (Bang.-CESTAT). The learned Advocate stated quoting from the various dictionaries that the cargo means - "the goods carried by a ship or aeroplane or any load to be carried". He stated that the activity undertaken by the appellants is on the goods as part of production process and not part of any movement from one place to another. Such activity has been held specifically as not cargo in the case of S.N. Uppar & Co.(supra). The significant aspect is the scope of expression 'cargo handling' the definition specifically requires the activity of packing, loading, unloading and unpacking of cargo. The Circular dated 1-8-2002 specifically refers to all the activities being done and most important activities, the activity of transportation to complete the cargo handling. Significantly, the definition makes it clear that while mere transportation is not sufficient to cover the activity under cargo handling, it necessarily has to be done in addition to loading, unloading, packing and unpacking of cargo. In fact, these services themselves would start af....
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....even though it is in the party's own case, is distinguishable in view of the certain factors. The Tribunal, according to him, has not examined whether the appellants can in the first place be at all considered as a cargo handling-agency. The Tribunal has not considered the fact that only after the goods are packed, they become cargo and after they become cargo, the appellants do not handle the same which is what is required in the terms of the definition, it was also stated that the Tribunal has not considered that the appellants do not undertake transportation of the cargo which is the test laid down by the Rajasthan High Court in the case of S.B. Construction Co. (supra). In fact the Tribunal notes that the goods are packed for transport but fails to examine that the next activity of transportation is also required to be done by a cargo handling agency. The Tribunal has not given any finding whether the appellants are specifically covered under the packing service which has come into effect from 16-6-2005 and how the appellants could be covered for the same activity under two different categories. It was further submitted that the same Bench of Kolkata Tribunal in the matter ....
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..... The point that there is no estoppel against the assessee in such situations. Since packaging service was subsequently specifically made taxable, it cannot be taxed during the period prior to its inclusion. The following case laws are relied on :- (i) Balaji Enterprises v. CCE [1997] 5 SCC 268. (ii) CCE v. MRF Ltd. [2005] 1 STT 80 (Chennai-CESTAT). (iii) Larsen & Toubro Ltd. v. CCE [2006] 4 STT 231 (New Delhi-CESTAT) (LB). (iv) Glaxo Smithkline Pharmaceuticals Ltd. v. CCE [2005] 1 STT 37 (Mum.-CESTAT). Further the impugned Order-in-Original has failed to see that in terms of Notification No. 12/2003-ST, dated 20-6-2003 as amended, no service tax can be demanded from the service provider to the extent of the value of the goods and materials sold for which there is documentary proof specifically indicating the value of the goods and materials. 10. In the absence of any provisions the impugned Order-in-Original grossly erred while holding adjustment of Rs. 72,76,214 plus Education Cess Rs. 1,45,524 paid by the appellants under the category of 'Business Auxiliary Service' for the period from 10-9-2004 to 31-3-2004 towards payment of service tax under the cate....
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....s. Moreover there are varying decision of cargo handling and the Commissioner of Central Excise & Customs (Appeals-I), Hyderabad vide Order-in-Appeal No. 06/2006 (H-I) Service Tax. dated 18-11-2006 has accepted that service tax on packaging activity was wrongly deposited under 'Business Auxiliary Service' and ordered refund of the same subject to unjust enrichment. Further, our attention was referred to the decision of the Commissioner of Central Excise and Customs, Vapi in the appellant's own case vide Order-in-Original No. 1-2/DEM-ST/VAPI; 2007, dated 6-12-2007. 15. In view of the above submissions, the recovery of interest confirmed in the OIO under provisions of section 75 of the Act is not sustainable since the service tax itself is not payable and the appellant has not contravened any of the provisions of the Act. Further reliance was placed on section 80 of the Act, which provides that no penalty shall be imposed on the assessee for any failure referred to in section 76, 77 or 78 of the Act, if the assessee proves that there was reasonable cause for the said failure. The following case laws were relied on:- (i) CCE v. Syncom Formulation (I) Ltd. 2004 (172) ....
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....ce tax net only with effect from 16-6-2005. Therefore it is very clear that when the service tax is liable only from 16-6-2005 under the taxable category of packaging activity, it could not have been taxed prior to that date. Moreover from the records available, it is seen that there has been no suppression of facts. The different Adjudicating Officers took different view and there was existence of several view points. In these circumstances, as the matter is one of interpretation, it cannot be alleged that the appellant suppressed any facts. Therefore the longer period also cannot be invoked. Hence, we do not find any merit in the impugned order which demands service tax on the activity of the appellant under the category of 'cargo handling service'. Therefore it is not correct also to adjust the amount, paid under the category of 'Business Auxiliary Service' for the period prior to 16-6-2005. We also find that the Commissioner has included the value of the export cargo in the demand that is also not correct. As the service tax itself is not payable under the category of 'cargo handling service', no interest can be demanded and penalty imposed is also not j....