BHAGYANAGAR SERVICES Vs. COMMR. OF C. EX., HYDERABAD

JUDGEMENT

(1.) THESE appeals arise from the Order -in -Appeal No. 6/2005 (H -IV) S. Tax, dated 29 -9 -2005 and 4/2005 (H -IV) S. Tax, dated 31 -5 -2005, passed by the Commissioner of Customs and Central Excise (Appeals -II), Hyderabad. As the issue is common in both the appeals, therefore they are taken up together for the disposal as per law.

(2.) THE appellants are engaged in providing service as a Clearing and Forwarding agent to their clients M/s. Ultra Tech Cemco Ltd. (formerly L and T Ltd.) who are the manufacturers of cement. The Department took verification of the agreements, which revealed that they were also providing other services, namely loading and unloading of cement bags on the platform of Railways. They had also collected transportation charges. After a detailed consideration, the Commissioner (Appeals) held that both the activities are covered under the category of taxable service of Clearing and Forwarding agents. This is under challenge.

(3.) THE learned Counsel submits that this Bench in the case of E.V. Mathai and Co. v. CCE, Cochin [2006 (3) S.T.R 116 (T) = 2003 (157) E.L.T 101 (Tri. - Bang.)] has clearly held that where separate contract exists for providing transport of the goods at different places and such transportation charges cannot be added to the charges of C and F agents. A copy of the order is produced. The learned Counsel submits that the issue on this point is covered in their favour. The issue pertaining to loading and unloading charges is concerned, the learned Counsel submits that this activity was brought under separate heading Cargo Handling Services with effect from 16 -8 -2002 by Finance Act, 2002. Therefore in view of this, the activity being treated separately by subsequent provisions of Finance Act, 2002, the charges on them cannot be added to the service of Clearing and Forwarding Agents. He also submits that this activity was known to the Department and hence the demand is barred by time. He contends that there is no suppression of facts. Therefore the larger period cannot be invoked in the matter. It is also submitted by the learned Counsel that the agreement clearly provides that the appellant shall reimburse the service tax on taxable services. He submits that whatever the service tax payable is reimbursed from the service receiver. He also submits that there was no intention on the part of the appellants to evade payment of duty. In this regard he relied on the following rulings: -