AUTO TRANSPORT SERVICES Vs. CCE

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal dated 3.8.2005 wherein the appellate authority has upheld the Order -in -Original imposing penalty on the appellants.

(2.) THE relevant facts that arise for consideration are that the appellants are providing services of transportation and loading of coal from rail yard to their client. The appellants vide their letter dated 28.11.2003 sought clarification from the department, whether such coal handling services provided by them would come under the purview of service tax. The office of the Suptd. of Central Excise vide their letter dated 22.12.2003 informed the appellants that services provided by them would get covered under the category of cargo handling agent service and they are liable to pay service tax. The appellants on their own calculated the service tax liability for the period 16.8.2002 to 31.12.2003 and discharged the duty liability on 31.1.2004 and interest payable thereon was also paid on 23.2.2004. The appellants were issued a show cause notice on 7.7.2004 directing them to show cause as to why penalty should not be imposed on them under different sections of the Finance Act, 1994. On adjudication the adjudicating authority imposed penalty on the appellants under Sections 75A, 76, 77, and 78 of the Finance Act, 1994. On an appeal preferred by the appellants, the Commissioner (Appeals) concurred the view of the adjudicating authority and upheld the Order -in -Original. Hence, this appeal.

(3.) LEARNED Advocate appearing for the appellants submits that it was their bonafide that on receiving communication from their client they approached the department and sought clarification whether the services provided by them were covered under the purview of the service tax. On hearing from the department, they have on their own discharged the duty liability without even waiting for any communication from the department. He relied upon the decision of the Larger Bench of the Tribunal in the case of CCE, Delhi -III, Gurgaon v. Machino Montell (I) Ltd. , and Rashtriya Ispat Ltd. which was upheld by the Supreme Court as reported in 2004 (163) ELT A53 (SC). Hence, he pleads that imposition of penalty be set aside.