At, Customs Excise Service Tax Appellate Tribunal South Zonal Bench At Chennai
By, THE HONOURABLE MS. JYOTI BALASUNDARAM
By, VICE PRESIDENT
Shri Joseph Prabhakar, Adv., for the appellant. Shri T. H. Rao, SDR, for the respondent
Heard both sides on the appeal against the confirmation of demand of service tax on the ground that the assessees were rendering Cargo Handling Service, and imposition of penalty under the provisions of Section 76 & 77 of the Finance Act, 1994. I find that on merits the issue stands against the assessees by the Tribunal?s decision in the case of J.K. Transport Vs. CCE, Raipur - 2006 (2) STR 3 (Tri.-Del.), wherein it has been held that a proprietary firm, cannot be said to be an individual undertaking the activity of loading and unloading of cargo in individual capacity and hence covered under cargo handling services. However, I find merit in the submission of the assessees that the demand for the period from August, 2002 to 31.01.2004, is barred by limitation for the reason that the show cause notice neither invokes the proviso to Section 73(1)(a) nor does it spell out any ingredient of any suppression/misdeclaration with an intention to evade payment of duty so as to make the extended period applicable. Since the period in dispute is from August, 2002 to 12.10.04, while the show cause notice is dated 31.1.2005, I accept the contention of the assessees that the demand for the period up to 31.01.2004 is barred by limitation. The demand for the period from February, 2004 to 12.10.2004 is upheld and required to be requantified, for which purpose the case is remanded to the adjudicating authority. Since, part of the demand is upheld, imp
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osition of penalty under Section 76 and Section 77 are also required to be assessed and I order accordingly. The appeal is thus partly allowed in the above terms.