Aditya Nath Mittal JUDGMENT
1. We heard Shri Ramesh Chandra Shukla, learned counsel for the Central Excise Department. This Central Excise Appeal under Section 35G of the Central Excise Act, 1944 has been filed by the Commissioner, Central Excise, Commissionerate, Meerut-I with delay of two days against the judgment of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) dated 6.3.2012 by which the appeal No. 665 of 2008 filed by CCE, Meerut-I was dismissed upholding the order of the Commissioner (Appeals), Customs and Central Excise, Meerut-I dated 9.7.2008.
2. The delay has been sufficiently explained. The delay condonation application is allowed. Since we do not propose to interfere on merits, we have condoned the delay and heard the arguments.
3. On an enquiry made by the jurisdictional Range Superintendent from M/s DSM Sugar Mills Ltd., Mansurpur, it was gathered that a total amount of Rs. 1,69,07,683/- was paid by them to M/s Manoj Kumar Arvind Kumar, the appellants during the period 16.8.2002 to 31.3.2007 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 godown. A show-cause notice dated 19.10.2007 was served upon the appellant to recover service tax amounting to Rs. 16,26,926/- with educational cess of Rs. 25,694/- under Section 73 of the Finance Act, 1994 with interest under Section 75 and the penalties.
4. The Adjudicating Authority decided the show-cause notice confirming the demand of service tax and education cess alongwith interest, besides imposing penalty of Rs. 1000/- under Section 77 and Rs. 100/- per day for every day of failure of payment of service tax upto 10.4.2006, and 2% per month for outstanding amount of service tax from 19.4.2006, till the date of actual payment.
5. The appeal filed by the party respondent was allowed by the Commissioner (Appeals), Central Excise, Meerut-1 on 21.7.2008 on the ground that under Section 65(105) (ZR) of the Finance Act 1994, the term 'taxable service' has been defined as any service provided or to be provided to any person by Cargo Handling Agency in relation to 'Cargo Handling Service'. The appellant is not Cargo Handling Agency. Instead he is getting the work done of shifting of sugar bags from one place to another in the premise of sugar mill with the help of fellow labourers. As per the agreement/contract entered with the sugar mill, the appellant has been engaged for shifting sugar bags from one place to another in the factory, stacking of bags, shifting of bags with belt conveyor/stacker, shifting of bags in godowns, loading/unloading of sugar bags/empty gunny bags, placement of brown/damaged or wet sugar from godown to melter. The Appellate Authority found that in the definition of 'Cargo Handling Service' under Section 65(23) of the Act, the transportation of goods is specifically excluded, thus the service provided by the appellant does not fall within the ambit of taxable service i.e. 'Cargo Handling Service'.
6. The Appellate Authority relied upon the judgment of Rajasthan High Court in S.B. Construction Company v. U.O.I., MANU/RH/0412/2006 : 2006 (4) STR 545 (Raj), in which shifting of coal from railway wagon to thermal plant by conveyor system was not found to fall within the ambit of Cargo Handling Service.
7. The appellate authority has also relied upon the judgment of CESTAT in Renu Singh & Co. v. CCE, Hyderabad, MANU/CB/8094/2007 : 2007 (7) STR 397 (Tri-Bang.) in which supplying labo........