RAM SWAROOP Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE present appeal stands filed against the order of Commissioner in review proceedings, vide which he has reviewed the order of the original adjudicating authority. It is seen that the original adjudicating authority, while confirming the demand of Service Tax against the appellants and while imposing penalty under Sections 76 and 77, did not impose any penalty under Section 78 of the Finance Act. Commissioner vide his impugned order has imposed penalty of equivalent amount i.e. Rs. 1,37,552/ - under Section 78 of the Finance Act, 1994. On matter being called, neither anybody appeared nor is there any adjournment request. Accordingly, we have heard Shri R.K. Gupta, learned SDR for the Revenue. We find that the issue involved in the present appeal is whether the activity of the appellants as regards the loading and unloading of sugar in the godown amounts to providing cargo handling services or not. We note that there are Tribunals decisions holding that such an activity does not amount to cargo handling services. In that case, the imposition of penalty upon the appellants in terms of Section 78 of the Finance Act cannot be, at this prima facie stage, held to be justifiable. We accordingly, dispense with the condition of pre -deposit of penalty, stay the recovery of the same during the pendency of the appeal.

(2.) Stay petition gets disposed of in the above terms.