C.C.E., Bhopal vs Balaji Enterprises

Arising out of the order-in-appeal No.210/BPL/2009 dated 11.5.2009 passed by the Commissioner (Appeals) Customs, Central Excise and

Service Tax, Bhopal.

For approval and signature:

Honble Mr. Justice G. Raghuram, President

Honble Mr. C.J. Mathew, Technical Member

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

C.C.E., Bhopal  Appellant

Vs.

Balaji Enterprises . Respondent

Appearance:

Present Mrs. Suchitra Sharma, A.R. for the appellant/Revenue

None for the respondent

Coram: Honble Mr. Justice G. Raghuram, President

Honble Mr. C.J. Mathew, Technical Member

Final Order No.53318/2015

Per Justice G. Raghuram:

Heard the ld. A.R. for Revenue. The appeal is preferred against the order dated 11.5.2009 of the ld. Commissioner (Appeals), Customs, Central Excise and Service Tax, Bhopal. Respondent/ assessees appeal preferred against the order of primary adjudication authority dated 16.12.2008 was allowed by the impugned order.

2. Proceedings were initiated against the assessee by a show cause notice dated 16.4.2008 proposing recovery of service tax of Rs.24.23.101/- along with interest and penalties, for having provided cargo handling services to M/s M/s Maihar Cement during October 2002 to December, 2004. The assessee, registered as labour contractor under an agreement with the Cement Company supplied labourer to monitor the production, packing and delivery of cement for arranging bags systematically in trucks and wagons. There was no requirement to load the cement manually in truck/wagons since Maihar Cement was equipped with completely automated plant, from the stage of production upto its delivery. Packed cement bags automatically move through a conveyor belt and are loaded onto trucks or wagons. Cement bags are mechanically loaded in the trucks/wagons and labourer supplied by the assessee simply stack them on vehicles properly or in the company storage/godown before delivery. The prmary adjudication order confirmed the demand under cargo handling service whereas the appellate authority by the impugned order relying on the judgment of the Tribunal in M/s J & J Enterprises v. C.C.E.  2006 (3) STR 655 (Tri-Del.) concluded that the activity falls outside t he purview of cargo handling service more appropriately within Manpower Recruitment or Supply Agency service, a category of service not alleged in the show cause notice. The appeal was therefore, allowed.

3. At the hearing today , the ld. A.R. has not placed any material to show that the earlier judgment of this Tribunal was reversed in any appeal through an appeal thereagainst is said to be pending before Honble High Court of Bilaspur and Chhittasgarh.

4. In the above circumstances, since the impugned order is inconsistent with the judgment in J & J Enterprises (supra), the appeal is misconceived and is accordingly dismissed. No costs.

(Justice G. Raghuram)

President

(C.J. Mathew)

Technical Member

scd/

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