GAJANAND AGARWAL Vs. COMMISSIONER OF CENTRAL EXCISE, BBSR

JUDGEMENT

(1.) These 7 (Seven) Appeals were filed by the following Appellants being aggrieved by the impugned orders mentioned against each for the impugned periods with tax and penalty demands of the amounts stated below holding that the services provided by all the appellants were Cargo handing service in all these 7 appeals. Revenue is the Respondent. Interest was also levied. Service Tax Appeal Case No.Impugned order No. & DatePeriodService Tax ImposedPenalty Imposed

(2.) THERE is common cause in all these appeals relating to taxability of receipt of consideration for services provided by all the appellants to Mahanadi Coalfields Ltd. providing pay loaders for loading of coal to wagons. Such service was adjudged by Revenue to be cargo handling service and service tax was levied on all the Appellants. The only exception is the appeal case No. 41/06 which arose out of the Revision order passed under Section 84 of the Finance Act, 1994 (hereinafter referred to as the Act) levying penalty of Rs. 11,41,020/ - equal to the amount of Service Tax involved in Appeal case No. 18/06. Originally penalty of Rs.1.00 Lakh was imposed on the appellant in the case of first appellant. But that was revised and enhanced to Rs. 11,41,020/ - by the learned Revisional Authority in terms of order dated 7 -6 -06 and that is in Appeal case No. 41/06 challenging the very levy of tax itself including penalty. All the appellants in the seven appeals have challenged levy of service tax denying their liability under the category of cargo handling agency service pleading that pay loader was let out to MCL for loading the coal in Railway wagons. While this is the grievance of the appellants, Revenues plea is that letting out of the pay loader was not the object of the contract but loading of the cargo was the basic object of the contract with time as essence of the contract and such service taxable under the Act. With this background, litigation proceeded between the parties and carried from adjudication to first appellate level after which the matters are before this forum.

(3.) THE issue before the ld. Appellate Authority was (1) Whether the job undertaken by the appellants was covered under the definition of Cargo handling Agency, (2) whether the amount of Service Tax levied along with penalty and interest is sustainable under the Finance Act 94, and (3) whether the demand of Service Tax is partly barred by limitation.