COMMISSIONER OF CENTRAL EXCISE Vs. HARBHAJAN LAL RAMPAL

JUDGEMENT

(1.) HEARD the ld. D.R. Shri Sharma for the appellant/Revenue. The appeal is preferred by Revenue against the order passed by the Commissioner (Appeals), Meerut -I dated 26 -9 -2008 reversing the adjudication order dated 1 -10 -2007 passed by the Assistant Commissioner, Division, Dehradun. The respondent/assessee was issued a Show Cause Notice alleging failure to remit service tax after filing returns, for providing the taxable service of cargo handling during the period 10 -9 -2004 to 17 -4 -2006; alleging realisation of Rs. 5,84,000/ -; and incurring the service tax liability of Rs. 59,568/ - thereby. According to the Show Cause Notice, the assessee received payments as sugar loading contractors in respect of loading, unloading and shifting of sugar bags from the floor of the mill house to the godown; and from one godown to another as desired by the employer; and for movement/handling of the goods. Nowhere in the Show Cause Notice is it asserted that the assessee had loaded sugar bags from the floor of the mill on a truck, or any vehicle for movement to godowns or from one godown to another or otherwise. The assessee, as apparent from the adjudication order dated 1 -10 -2007 neither responded to the Show Cause Notice nor appeared for personal hearing before the adjudicating authority. The adjudicating authority therefore proceeded ex. party and concluded that the services provided by the assessee to M/s. Laxmi Sugar Mills Ltd., Roorkee constituted cargo handling service as defined in Section 65(23) read with Section 65(105)(zr) of the Finance Act, 1994 and confirmed the service tax demand of Rs. 59,568/ -; interest thereon; and penalties as specified in the order including penalty equivalent to the service tax assessed, under Section 78 of the Act.

(2.) AGGRIEVED , the assessee preferred an appeal which was allowed by the Commissioner (Appeals), by the order impugned in this appeal. The appellate authority recorded the assertion of the assessee that he was just a labourer who was given the responsibility of overall supervision, movement and loading/unloading of the material and in no way performed services as a contractor or a provider of the cargo handling service nor a cargo handling agency. The assessee contended before the appellate authority that the payments received were distributed among fellow labourers, who did the same job. On the basis of this assertion which was not apparently refuted by Revenue before the appellate Commissioner, the appellate authority concluded that the activity of the assessee did not constitute cargo handling service, since there was no loading or unloading from any vehicle or vessel involved.