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OIO No. 23/JC/2012 Date: 29.02.2012

lhek “kqYd ,oa dsUnzh; mRikn “kqYd vk;qDrky;] dsUnzh; mRikn “kqYd Hkou]

jsl dkslZ] fjax jksM jktdksV-360001OFFICE OF THE COMMISIONER OF CUSTOMS & CENTRAL EXCISE

RACE COURSE RING ROAD, RAJKOT-360001 F.NO.V.ST/15-307/Adj/2010 By RPAD/HAND DELIVERY

Ekwy vkns”k Lka.Order in Original NO.23/JC/2012

vkns”k dh frfFkDate of Order:-

29.02.2012

tkjh djus dh frfFkDate of Issue:-

06.03.2012

vkns”kdrkZ dk uke :Passed by:

,e- KkulqUnjeसंयुक्त आयुक्त

ds0 m-0 “kqYd vk;qDrky;]jktdksV

ds lanHkZ esa :In the matter of

M/s. Arjanbha Derajbha & Sons, Vill: Mojap, Post, Mitapur, Distt. Jamnagar

dkj.k crkvksa uksfVl la- &frfFk Show Cause Notice No. & Date.

SCN No.V.ST/AR-JMR/JC/263/2010 dated 18.10.2010

1- ;g izfrfyfi ml O;fDr dks futh mi;ksx ds fy, fu%'kqYd nh xbZ gSA ftls ;g tkjh fd;k x;k gSA1. This copy of order is granted free of charges to the person to whom it is issued.

2- bl vkns'k ls ;fn dksbZ O;fDr vlarq"V gS rks bl vkns'k ds fo:) fuEufyf[kr dks vihy dj ldrk gSA&vk;qDr ¼vihy½ lhek ,oa dsUnzh; mRikn 'kqYd] jsl dkslZ fjax jksM jktdksVA2. Any person deeming himself aggrieved by this order may appeal against this order to the Commissioner (Appeals), Customs & Central Excise, Central Excise Bhavan, Race Course Ring Road, Rajkot.

3- vihy dk QkeZ ,l-Vh-&4 nks izfr esa Hkjk tk, ,oa mlds lkFk fu.kZ; dh izfrfyfi ;k lsokdj fu;e] 1994 dh dye 8 esa fofufnZ"V vuqlkj vkns'k ds fo:) vihy dh izfrfyfi gksuh pkfg,A 3. The Appeal should be filed in form ST-4 as per Rule 8 of Service Tax Rules, 1994 and it shall be signed by the person as specified in Rule 3 (2) of the Central Excise (Appeals) Rules, 2001.

4- ikVhZ }kjk bl vkns'k dks O;fDrxr izkIr fd, tkus dh rkjh[k ls ;k Mkd }kjk izkfIr dh rkjh[k ls rhu eghus ds vanj vihy Qkby dh tkuh pkfg,A4. The appeal should be filed within three months from the date of receipt of this order. [Section 85 of the Finance Act, 1994].

5. blds lkFk fuEufyf[kr dkxtkr gksuh pkfg,A5. The appeal should be accompanied by:

¼v½ ,slk vkns'k dh izfrfyfi ;k nwljs dh d izfrfyfi ftl ij uhps n'kkZ, v?khu fu/kkZfjr dksVZ dh Qhl LVsEi gksuh pkfg,A(a) Copy of this order which should bear court fee stamp as prescribed under Schedule 1 of Article 6 of the Court Fee Stamp Act, 1870, as under:(i) ;fn lCtsDV eSVj dh jde ;k ewY; ;k ewY; 50 :i; ;k 50 :i;s ls de gks rks :i;s 00-25 gksA(i) If the amount or value of subject matter is rupees fifty or less, then Rs.0.25;(ii) ;fn lCtsDV eSVj dh jde ;k ewY; ;k ewY; 50 :i; ;k 50 :i;s ls v/khd gks rks :i;s 00-50 gksA(ii) If such amount exceed Rs.50, then, Rs.0.50 paisa.

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¼c½ vihy izfrfyfi ftl ij :i;s 2-50 dh dksVZ Qh LVsEi gksuh pkfg,A(b) A copy of the appeal should also bear a court fee stamp of Rs.2.50.

6. lsok dj ]naM ¼isuYVh½ vkfn ds Hkqxrku dk izek.k AProof of payment of duty, penalty etc., should also be attached to the original form of appeal.

BRIEF FACTS OF THE CASE:

M/s. Arjanbha Derajbha & Sons, Village: Mojap, Post, Mitapur, Distt. Jamnagar (hereinafter referred to as "Noticee”) are engaged in providing various services to M/s. Tata Chemicals Ltd, Mithapur which are chargeable to Service Tax under the category of “Cargo Handling Services”, “Cleaning Activity Services” and “Manpower Recruitment and Supply Services” since 2005-06. The Noticee were registered with the Service Tax department under the category of “Manpower Recruitment Services” and were holding Registration No. JMN/MRA-541/S.Tax/2003-04 dated 01.03.2004, which was surrendered by them in 2006. They have not paid any Service Tax and filed periodical returns thereof.

2. Whereas, during the course of audit of M/s. Tata Chemicals Ltd, Mithapur, it was noticed that the Noticee have provided services of “loading wagons, covering of tarpaulin in cement plant and supply chain department” at the factory of M/s. Tata Chemicals Ltd., Mithapur, which appear to be services as specified under the Finance Act, 1994. Accordingly jurisdictional Service Tax authorities started investigation and called for information from the noticee vide letters bearing no. JMN/S.Tax/FAR-I-22/08-09 dated 19.11.2008, 15.12.2008 and 21.01.2009. However, the Noticee could not produce the relevant documents and failed to submit the data showing the details of services rendered to M/s. Tata Chemicals Ltd, Mithapur. To quicken the pace of investigation, the jurisdictional service authorities called for information from M/s. Tata Chemicals Ltd, Mithapur about the various services rendered by the noticee and the details of payment made to the Noticee. In reply M/s. Tata Chemicals Ltd, Mithapur, vide their letter dated 19.03.2009 submitted the details of the services provided by the noticee to them.

3. To know the nature and quantum of services rendered a summons was issued to the Noticee on 28.09.2010 to appear on 04.10.2010. However, he appeared on 13.10.2010. A statement of Shri Khetabha Arjanbha Sumaniya, Partner and Authorised Signatory of the Noticee was recorded on 13.10.2010 wherein he inter alia stated that M/s. Arjanbha Derajbha & Sons was a partnership firm, having total two partners including himself and he was authorised signatory of the firm and was responsible for all the work of the firm; M/s. Arjanbha Derajbha & Sons was started in 1999 and was doing the work of M/s. Tata Chemicals Ltd, Mithapur only; they were mainly doing the job of collecting the spillage finished goods like soda ash and salt from the factory area and loading area and cleaning the area and putting the

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spillage material in the plastic bags and stitching the bag and then stacking the bags; they also carried out work of cleaning the empty railway wagon and after loading goods sealing the railway wagon; they also carried out work of covering the goods with tarpaulin and also supply man power for factory work as and when required; they did not know whether Service Tax was payable on those services; they were never informed by M/s. Tata Chemicals about the Service Tax liability; they have not collected and paid Service Tax for the period 2005-06 to 2009-10 and also not paid Service Tax for the current year i.e. 2010-11 till date; however, they were engaged in the work of man power supply during the year 2003-04, and obtained Service Tax registration no. JMN/MRA-541/S.Tax/2003-04 on 01.03.2004; they paid Rs. 3747/- as penalty vide three challans and also submitted copies of three challans; after taking registration in 2003-04, they have not paid any Service Tax and not filed returns; they also surrendered the said registration vide letter dated 30.03.2006 to the Service Tax, Jamnagar office and submitted a copy of the said letter. He also submitted copies of profit & loss account and balance sheet for the year 2005-06 to 2008-09 and assured to submit the same for the year 2009-10 within three days, as the accounts for the said year till date were not finalized. He also submitted work wise income for the year 2006-07 to 2009-10 and the figures for 2009-10 (upto January only). He further stated that copies of income ledgers for the year 2005-06 to 2009-10 and invoices for the last 5 years were not readily available and assured to submit the same within three-four days.

4. Whereas, it appeared that the Noticee during his statement dated 13.10.2010 submitted the copies of Profit & Loss Account for the year 2005-06 to 2008-09 and also submitted details of bill wise income for the year 2006-07 to 2009-10 (upto Jan-10). However, they did not submit the copies of invoices for the year 2005-06 to 2009-10 and any accounts for the year 2009-10. Due to non-submission of documents by the noticee, the Service Tax calculation was done considering the total income shown in the Profit & Loss Account for the year 2005-06 to 2008-09 and income shown in the bill wise details submitted by the noticee for the year 2009-10 (upto Jan-10) as the taxable income.

5. Whereas, from the statement of the partner of the Noticee, it appeared that the Noticee had rendered the services of cargo handling at the factory premises of M/s. Tata Chemicals Ltd, Mithapur by carrying out work of stacking of bags. It appeared that the activities carried out by the Noticee squarely falls under the category of “Cargo Handling Service” as defined in Section 65 (23) of Finance Act, 1994 which is reproduced below:-

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“"cargo handling service” means loading, unloading, packing or unpacking of cargo and includes,—

(a) cargo handling services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight; and

(b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking,

but does not include, handling of export cargo or passenger baggage or mere transportation of goods;”

6. A person satisfying the definition of ‘Cargo handling service” is liable to pay Service Tax in respect of the ‘taxable service’ as defined in the Finance Act, 1994. For this purpose, Section 65 (105) (zr) of the Finance Act, 1994 is relevant, which defines that “taxable service” means any service provided or to be provided - to any person, by a cargo handling agency in relation to cargo handling services.

7. Whereas, from the statement of the partner of the Noticee and the details of the work done by them, it appeared that the Noticee had also rendered the services of supply of man power for the factory work i.e. weighbridge servicing, chemical wagon loading, etc., to M/s. Tata Chemicals Ltd, Mithapur. The activities carried out by the Noticee squarely falls under the category of “Manpower Recruitment or Supply Agency Service” as defined in Section 65 (68) of Finance Act, 1994 which is reproduced below:-

“"manpower recruitment or supply agency” means any person engaged in providing any service, directly or indirectly, in any manner for recruitment or supply of manpower, temporarily or otherwise, to any other person.”

8. A person satisfying the definition of ‘Manpower recruitment or supply agency’ is liable to pay Service Tax in respect of the ‘taxable service’ as defined in the Finance Act, 1994. For this purpose, Section 65 (105) (k) of Finance Act, 1994 is relevant, which defines that “taxable service” means any service provided or to be provided -to any person, by a manpower recruitment or supply

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agency in relation to the recruitment or supply of manpower, temporarily or otherwise.

9. Whereas, from the statement of the partner of the Noticee and the details of the work done by them, it appeared that the Noticee had also rendered the services of godown cleaning, wagon cleaning etc. to M/s. Tata Chemicals Ltd, Mithapur. It appears that the activities carried out by the Noticee falls under the category of “Cleaning Activity Service” as defined in Section 65 (24b) of Finance Act, 1994 which is reproduced below:-

““cleaning activity” means cleaning, including specialized cleaning services such as disinfecting, exterminating or sterilizing of objects or premises, of —

(i) commercial or industrial buildings and premises thereof; or

(ii) factory, plant or machinery, tank or reservoir of such commercial or industrial buildings and premises thereof, but does not include such services in relation to agriculture, horticulture, animal husbandry or dairying;”

10. A person satisfying the definition of ‘Cleaning Activity Services’ is liable to pay Service Tax in respect of the ‘taxable service’ as defined in the Finance Act, 1994. For this purpose, Section 65 (105) (zzzd) of Finance Act, 1994 is relevant, which defines that “taxable service” means any service provided or to be provided – to any person, by any other person in relation to cleaning activity.

11. During the scrutiny of invoices / documents submitted by the Noticee, it was observed that the Noticee had rendered the following services to M/s. Tata Chemicals Ltd. The year-wise details are as under:-

Year Description of services Amount of total Income as per the Profit & Loss Account / Details submitted by the Noticee

2005-06 Cargo Handling ServicesMan power recruitment and supply serviceCleaning services

Rs. 29,10,666/-

2006-07 Cargo Handling ServicesMan power recruitment and supply serviceCleaning services

Rs. 30,33,235/-

2007-08 Cargo Handling ServicesMan power recruitment and supply service

Rs. 23,77,493/-

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Cleaning services2008-09 Cargo Handling Services

Man power recruitment and supply serviceCleaning services

Rs. 27,07,030/-

2009-10(upto Jan-10)

Cargo Handling ServicesMan power recruitment and supply serviceCleaning services

Rs. 31,28,100/-

12. From the above, it appeared that the Noticee had rendered services under the category of Cargo Handling Service, Cleaning Activity Service and Manpower Recruitment or Supply Service to M/s. Tata Chemicals Ltd, Mithapur during the period 2005-06 to 2009-10 (upto Jan-10) and received Rs. 1,41,56,524/- as total income. Therefore, it appeared that the Noticee failed to pay the applicable Service Tax amounting to Rs. 16,28,027/- on the said taxable services.

13. Whereas, it appeared that the Noticee, at no point of time, disclosed to the department in any manner that they were providing taxable services and were liable to pay Service Tax. This fact was disclosed only when the statement of partner and authorized signatory of the Noticee was recorded on 13.10.2010. Thus, it appeared that the Noticee had deliberately suppressed the material facts from the department, so as to avoid the payment of Service Tax. Not paying Service Tax at any point of time and not obtaining Service Tax registration clearly shows their malafide intention of evading the payment of Service Tax. Therefore, extended period of five years was required to be invoked under provisions of Section 73 of the Finance Act, 1994. Therefore, the short payment of Service Tax of Rs. 16,28,027/- was required to be recovered along with interest from the Noticee under Section 73(1) of the Finance Act, 1994 read with Section 67, 68 & 75 of the Finance Act, 1994.

14. As per Section 69 of the Finance Act, 1994, ‘every person liable to pay the Service Tax under this Chapter or the rules made there under shall, within such time and in such manner and in such form as may be prescribed, make an application for registration’. In the present case, it appeared that the Noticee had not applied for registration during the relevant period under any service category as discussed above and thereby violated the provisions of Section 69 of the Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994.

15. As per Section 70 of the Finance Act, 1994, ‘every person liable to pay the Service Tax shall himself assess the tax due on the services provided by him, and furnish a return in such form and in such manner and at such frequency as

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may be prescribed’. The form, manner and frequency of return are prescribed under Rule 7 of the Service Tax Rules, 1994. In the present case, it appeared that the Noticee had not assessed the tax due, properly, on the services provided by them, as discussed in para supra, and also not filed any returns during the year 2005-06 to 2009-10 and thereby violated the provisions of Section 70 of the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994.

16. Further as per Section 68 of the Finance Act, 1994, ‘every person providing taxable service to any person shall pay Service Tax at the rate specified in Section 66 in such manner and within such period as may be prescribed’. The manner and period of payment of Service Tax has been prescribed under Rule 6(1) of the Service Tax Rules, 1994. In the present case, it appeared that the Noticee had not paid the Service Tax in the rate, manner and period prescribed, which has resulted in non payment of Service Tax amounting to Rs. 16,28,027/- as detailed above, and thereby contravened the provisions of Section 68 of the Act, read with Rule 6 of the Service Tax Rules, 1994.

17. In view of the foregoing paras, it appeared that the Noticee had contravened the provisions of the Act and rules made there under as below:

(i) The provisions of Section 66 of the Finance Act, 1994 inasmuch as they have not discharged their tax liability on appropriate amount in connection to the services provided by them to their clients;

(ii) The provisions of Section 67 of the Finance Act, 1994 inasmuch as they have not made correct assessment of tax on the amount received by them;

(iii) The provisions of Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994 inasmuch as they have not discharged their Service Tax liability on the correct amount received by them;

(iv) Section 69 of Finance Act, 1994 read with Rule 4 of the Service Tax Rules, 1994 inasmuch as they failed to obtain Service Tax registration at material time;

(v) Section 70 of the the Finance Act, 1994 read with Rule 7 of the Service Tax Rules, 1994 inasmuch as they failed to assess their correct tax liability and also failed to file returns.

18. Whereas, it appeared that the Noticee had not paid Service Tax, Education Cess & Secondary & Higher Secondary Ed. Cess total amounting to Rs. 16,28,027/- by due date and the same was required to be recovered under Section 73(1) of the Finance Act, 1994 alongwith interest under Section 75 of the Finance Act, 1994. It

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also appeared that they had suppressed the material facts from the department with intent to evade the payment of Service Tax and also, contravened various provisions of the Act/ Rules as mentioned in para-supra and therefore, they were liable for penalty under Section 76, 77 & 78 of the Finance Act, 1994.

19. Therefore, show cause notice No. V.ST/AR-JMR/JC/263/2010 dated 18.10.2010 was issued to the noticee, requiring them to show cause as to why:

(i) Services Tax of Rs. 16,28,027/-, should not be recovered under Section 73(1) of the Finance Act, 1994 read with Section 68 of the Finance Act, 1994;

(ii) Interest at the applicable rate on the said amount of Service Tax should not be recovered from them under Section 75 of the Finance Act, 1994 ;

(iii) Penalty should not be imposed upon them under Section 69 of the Finance Act, 1994 for failure to obtain the Service Tax registration

(iv) Penalty should not be imposed upon them under Section 70 of the Finance Act, 1994 for failure to file return in time by them;

(v) Penalty should not be imposed upon them under Section 76 of the Finance Act, 1994 for failure to make the payment of Service Tax payable by them;

(vi) Penalty should not be imposed upon them under Section 77 of the Finance Act, 1994;

(vii) Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 for suppressing the value of taxable services provided by them with an intention to evade payment of Service Tax;

DEFENCE AND PERSONAL HEARING:

20. The noticee submitted reply to the SCN vide letter dated 08.12.2011 and inter alia, pleaded as under:

(i) The SCN does not indicate the activity which is sought to be taxed falls under which part of the definition of the terms mentioned in respective definitions of the taxable services. Moreover, the SCN seeks to levy service tax under taxable head of cargo handling service, manpower recruitment or supply agency services, cleaning agency services. No reason whatsoever has been provided in the SCN for alleging that they provided such services. In absence of any assertion about the activities and the sub-clause under which head the said activity is covered, it is impossible for the

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department to levy service tax. They relied upon the decision of Hon. Supreme Court in the case of Amrit Food Vs. CCE – 2005 (190) ELT 433 (SC).

(ii) It appears that the demand under cargo handling services has been raised for the activity of collecting spillage of finished goods like Soda Ash, Salt etc. The said activities are not classifiable under the taxable category of cargo handling services. In view of clarification issued by the Board vide circular No. B.11/1/2002-TRU dated 01.08.2002 and DOF No. 334/1/2008-TRU dated 29.02.2008, it is clear that government wanted to tax those activities under cargo handling services which are packing, unpacking, loading and unloading of the goods and the activity is meant for transportation of goods by any means of transportation. While in the present case, they are engaged in collection of spillage of finished goods and after stitching the bags stack them within the factory as may be directed by Tata Chemicals Ltd. and the goods were not meant for transportation by any means. Therefore, for these activities, demand under cargo handling services is not sustainable.

(iii) The essence of the contract was for internal collection of the finished goods spillage like soda ash and salt and not handling of the goods. They relied upon the decision of Hon. Tribunal in the case of N. Rajashekhar & Co. – 2008 (12) STR 760 (Tri-Bang) and Modi Construction Co. – 2008 (12) STR 34 (Tri-Kolkota), which was confirmed by Hon. Jharkhand High Court in 2011 (23) STR 0006 (Jhar.).

(iv) The movement of goods within the factory premises is not covered in the definition of cargo handling services. They relied upon the following case laws:(a) S. N. Uppar – 2008 (11) STR 34 (Tri-Bang)(b) Surinder Kumar – 2010 (20) STR 678 (Tri-Del)(c) Kumar Engineering and Contractors – 2010 (18) STR 448 (Tri-Del)(d) Avian Overseas Pvt. Ltd. – 2009 (15) STR 540 (Tri-Kolkota)(e) N. Rajashekhar & Co. – 2008 (12) STR 760 (Tri-Bang)(f) Sainik Mining & Allied Services Ltd. – 2008 (9) STR 531 (Tri-Kolkata).

(v) The activity of packing of soda ash is amounting to manufacture and therefore, service tax cannot be demanded under any of the taxable category of services. As per Section 65(76b) of the Finance Act, 1994, packing activity service excludes packing activity that amounts to manufacture. This is also clarified under letter F. No. B1/6/2005-TRU dated 27.07.2005. In the present case, they have collected the spillage of finished goods of soda ash and packed them into 50 kgs bags etc. which is clear from the invoices raised by them. As the activities carried out by

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them are in the nature of packaging activity services and not taxable under any other taxable category of services. Further as per chapter note 9 of chapter 28 (soda ash), labelling or re-labelling of containers and repacking from bulk packs to retail packs or the adoption of any other treatment to render the product marketable to the consumer, shall amount to ‘manufacture’. Therefore, they would not be liable to service tax as the same would amount to manufacture. They relied upon the judgment in the case of Kedia Castle Delleon Ind. Ltd. – 2011 (22) STR 15 (Tri-Del) and decision of Larger Bench of Hon. Madhya Pradesh High Court in the case of Maa Sharda Wine Traders – 2009 (15) STR 3 (MP).

(vi) It appears that the demand under Manpower Recruitment or Supply Agency services has been raised for the misc. work carried out by them in the factory of Tata Chemicals Ltd. From circular No. B1/6/2005-TRU dated 27.07.2005, it is clear that the activity may fall under taxable category of manpower supply and recruitment agency only when there is a contract for supply of manpower temporary or otherwise. The demand has been raised on the ground of the description of the services mentioned on the copies of invoices. Perusal of the copies of invoices clearly states that they were required to perform the specific task and not to supply any manpower. They cannot be treated as manpower recruitment or supply agency, as they have not supplied any manpower to anyone. Only head hunters, placement agencies etc. would be covered. They also cited the Board’s Master Circular No. 96/7/2007 dated 23.08.2007. They also relied upon the case law of S. S. Associates – 2010 (19) STR 438 (Tri-Bang), Divya Enterprises – 2010 (19) STR 370 (Tri-Bang) and Ritesh Enterprises – 2010 (18) STR 17 (Tri-Bang).

(vii) They were given a task of collection of spillage of finished goods like soda ash, salt etc. and packing them and stacking them as per the direction of Tata Chemicals Ltd. and not for any supply of manpower. Therefore, the demand is liable to be set aside.

(viii) It appears that the demand on account of cleaning activity services is proposed for the activity of collection of spillage of finished goods. From the definition of cleaning service as provided under section 65(24b) of the Act, it is clear that the service has been introduced with the aim to cover the cleaning /specialised clearing services provided in relation to objects or premises of commercial or industrial buildings. This is also supported by clarification issued from F. No. B1/6/2005-TRU dated 27.02.2005. In the present case, they were not involved in cleaning activity of anything. The scope was to collect the spillage of finished goods and not clean any premises, building, tank etc. Therefore, they are not covered by the

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definition of cleaning agency services and hence demand is not sustainable.

(ix) Without prejudice, even if they are liable to pay service tax on the amount received from service receivers, the tax calculation is incorrect. The amount received from service receiver has to be treated as inclusive of the amount of service tax payable. They relied upon the Larger Bench decision in the case of Sri Chakra Tyres – 1999 (108) ELT 361, which was affirmed by Hon. Supreme Court, as reported in 2002 (142) ELT A279 (SC). They also relied upon the Apex Court judgment in the case of CCE Vs. Maruti Udyog Ltd. – 2002 (49) RLT 1 (SC). They also relied upon the Trade Notice No. 20/2002 dated 23.05.2002 of Delhi-II Commissionerate.

(x) The legislature has further clarified the legal position in respect of value of the taxable service by incorporating Explanation No. 2 in section 67 of the Act. They also relied upon the following decisions of Hon. CESTAT:(a) Rajmahal Hotel Vs. CCE – 2006 (4) STR 370 (Tri-Del)(b) Gem Star Enterprises (P) Ltd. Vs. CCE – 2007 (7) STR 342(c) Panther Detective Services Vs. CCE–2006 (4) STR 116 (Tri-Del).

(xi) It is clear from the statutory provisions that for imposing penalty under section 78 of the Act, it has to be established that there is a short payment of service tax by reason of fraud, collusion, wilful mis-statement, suppression of facts or contravention of any provisions of the Act or rules made thereunder with intent to evade payment of service tax. The SCN has not given any reason whatsoever for imposing the penalty under section 78 of the Act. In the present case there is no fraud, suppression, wilful mis-statement of facts and hence penalty under section 78 cannot be imposed. They were entitled to entertain the belief that their activities were not taxable. That cannot be treated as suppression from the department. They relied upon Hon. Gujarat High Court decision in case of Steel Cast Ltd. – 2011 (21) STR 500 (Guj.)

(xii) As there is no short payment of service tax, penalty under section 76 cannot be imposed. They have always been and are still under the bonafide belief that they were not liable to pay service tax. Therefore, penalty under section 76 cannot be imposed. They relied upon the decision of Hon. Supreme Court in the case of Hindustan Steel Ltd. Vs. State of Orissa – AIR 1970 (SC) 253, which was followed by the Tribunal in the case of Kellner Pharmaceuticals Ltd. Vs. CCE – 1985 (20) ELT 80.

(xiii) Even if any contravention of provisions was there, the same was solely on account of their bonafide belief and such bonafide belief was based on the reasons stated above. They relied upon the judgment of the Hon. Supreme Court in the case of Pushpam Pharmaceuticals Co. Vs. CCE – 1995 (78) ELT

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401 (SC) and CCE Vs. Chemphar Drugs and Liniments – 1989 (40) ELT 276 (SC).

(xiv) Penalties under section 76 and 78 of the Act cannot be simultaneously imposed. Penalties under section 76 and 78 are mutually exclusive. Section 78 is applicable if non-payment of service tax is due to reasons specified therein with an intention to evade payment of service tax. Section 76 is applicable in cases other than those covered under section 78 of the Act. They relied upon the following case-laws:(a) The Financers Vs. CCE, Jaipur – 2007 (8) STR 7 (Tri-Del)(b) CCE, Ludhiana Vs. Pannu Property Dealer-2009 (14) STR 687 (Tri-Del)(c) CCE, Chandigarh Vs. City Motors – 2010 (19) STR 486 (P&H)(d) CCE, Chandigarh Vs. M/s. Cool Tech Corporation (Service Tax Appeal No. 47 of 2010)

(P&H)(e) CCE Vs. M/s. First Flight Courier Ltd. – 2011 (22) STR 622 (P&H).

(xv) This view is reinforced by the proviso to Section 78, which provides that where penalty is payable under Section 78, the provisions of Section 76 shall not apply.

(xvi) It is settled principle of law that if a dispute is arising out of interpretation of the provisions of statute or exemption notification, no penalty can be levied. They relied upon the following case laws:

(a) Bharat Wagon & Engg. Co. Ltd. Vs. CCE, Patna – (146) ELT 118 (Tri-Kolkota)

(b) Boenka Woolen Mills Ltd. Vs. CCE, Shillong – 2001 (135) ELT 873 (Tri-Kolkota)

(c) Bhilwara Spiners Ltd. Vs. CCE, Jaipur – 2001 (129) ELT 458(xvii) Section 80 of the Act provides that no penalty shall be imposed on the

assessee for any failure referred to in Section 76, 77 or 78 of the Act, if the assessee proves that there was reasonable cause for the said failure. Thus, the Act statutorily provides for waiver of penalty. In the present case, there was a bonafide belief that the activities carried out by them are not taxable. Therefore, in terms of section 80 of the Act, penalties cannot be imposed under section 76, 77 and 78 of the Act. They relied upon the following case laws:

(a) ETA Engineering Ltd. Vs. CCE, Chennai – 2004 (174) ELT 19 (Tri-LB).(b) Flyingman Air Courier Pvt. Ltd. Vs. CCE – 2004 (170) ELT 417 (T)(c) Star Neon Singh Vs. CCE, Chandigarh – 2002 (141) ELT 770 (T).

21. Personal hearing in the matter was held on 11.01.2012, which was attended by representative of the noticee. He briefed their defence reply dated 08.12.2011 and requested to decide the case on the same.

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DISCUSSION AND FINDINGS:

22. I have carefully gone through the entire case records, SCN issued, defence put forth by the noticee in writting as well as contentions raised during personal hearing. I find that the issue to be decided in present case is – whether the noticee is liable to pay service tax on the various services provided to M/s. Tata Chemicals Ltd. or otherwise.

23. It is contended by the noticee that the SCN does not indicate specific activities falling under which clause of definition of taxable service and therefore department cannot levy service tax. They have also relied upon the decision of Hon. Supreme Court in the case of Amrit Food Vs. CCE – 2005 (190) ELT 433 (SC). I find that the contention of the noticee is not correct, inasmuch as the partner of the noticee, in his statement recorded on 13.10.2010, described the works carried out by them in Tata Chemicals Ltd. and based on which it is proposed in the SCN that (i) the work of stacking of bags should be classified under the category cargo handling service (Para-5 of the SCN), (ii) the work of weigh bridge servicing, chemical wagon loading, etc. should be classified under the category of Manpower recruitment or supply agency (Para-7 of the SCN), and (iii) the work of godown cleaning, wagon cleaning, etc. should be classified under cleaning activity service (Para-9 of the SCN). Thus, the SCN has very clearly spelt out the different types of work carried out by the noticee and their proposed classification under appropriate category, according to type of work/service provided by the noticee. The SCN also clearly spelt out the breach of various provisions of the Act and Rules framed thereunder. Therefore, it cannot be said that the SCN suffers from any lack. In view of the clear and unambiguous description of services and violation of provisions provided in the SCN, the judgment cited by the noticee is not applicable to the facts of the present case. Further, it is also mentioned in the SCN that the noticee failed to produce copies of invoices, though specifically called for (Para-4 of the SCN). It is but natural that in absence of all the invoices, bifurcation of value of service category-wise is not possible. Therefore, department cannot be blamed for not bifurcating the value of services category-wise, as the noticee has not provided the requisite data.

24. It is further contended by the noticee that collecting spillage of finished goods inside factory area of Tata Chemicals Ltd. would not be covered under cargo handling service, as the category is applicable to such cargo handling which is meant for further transportation. They have relied upon some case laws in this regard. On careful study of the working pattern, it is clear that the noticee is not only required to collect the spillage of finished products in the factory but also

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required to bag them into 50 kg bags and stacking them. Collecting spillage of finished products and packing the same into predetermined quantity bags and then stacking the same shows that it is meant for clearance only. When the cargo is meant for clearance by way of any mode of transportation, handling of such cargo would certainly be liable to classification under “Cargo Handling Service”. In the case law of S. N. Uppar & Co., cited by the noticee, the party was handling semi-finished goods inside the factory and therefore it was held by the Hon. Tribunal that such movement inside the factory premises, which is supply of labour, does not amount to cargo handling. However, in the present case, the noticee handled finished product and that too by packing the same in 50 kg bags and stacking them, ready for clearance. Therefore this case law is not applicable to the facts and circumstances of the case. Similarly, in case of Surinder Kumar – 2010 (20) STR 678, the party was engaged in movement of bags from one godown to another and therefore it was held that the same is not covered under cargo handling service. However, in the present case, the noticee is involved in collection of spillage, bagging it into 50 kg bags, stitching the bags and stacking the same. Therefore, facts being different, this case law is also not applicable. I have also gone through the other case laws cited by the noticee in this regard and it is found that the facts in each case law is different from the present case and therefore, the case laws are not applicable here.

25. It is further argued by the noticee that the activity of packing soda ash is ‘manufacture’ as per chapter note 9 to chapter 28 and the activity being akin to Packaging Activity Service, the activity amounting to manufacture is excluded from purview of Packaging Service (Section 65(76b)). Therefore, they are not required to pay service tax on such re-packing of final product soda ash. As discussed hereinabove, the collection of spillage, bagging and stacking of such final product is correctly classifiable under cargo handling service and not under Packaging Service, as contended by the noticee. It is seen that in case of cargo handling service, no such exclusion is provided, that is, the activity amounting to manufacture is excluded. Therefore, the plea is of no use and irrelevant. Further, if for sake of argument, it is believed that the service is correctly classifiable under Packaging Service, then also, as per Chapter Note 9 to Chapter 28, repacking of soda ash from bulk pack to retail pack to make the goods marketable only would amount to manufacture. However, collection of spillage and bagging them – would not amount to manufacture. Anyway, if it is the contention of the noticee that as per the said chapter note, the activities carried out by them amounted to ‘manufacture’, they would have taken central excise registration for the same and paid duty for such activities. However, no such recourse has been taken by the noticee and they have argued this point just to escape their service tax liability. Anyway, since it is held

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that the activity in question was correctly covered under cargo handling service, there is no meaning to discuss about Packaging Service or chapter note 9 to chapter 28. For the same reasons, the case law cited by the noticee – Kedia Castle Delleon Ind. Ltd. – 2011 (22) STR 15 (Tri-Del) is also not applicable here.

26. Regarding demand under the category of Manpower Supply and Recruitment Agency, it is contended by the noticee that they were given a task of collection of spillage of finished goods and packing them and not for supply of manpower; that as per Board’s circulars and case laws, only head hunters, placement agencies, etc. would be covered under this category. In this regard, on going through the SCN, it is seen that the demand under this category pertains to work of weighbridge servicing, chemical wagon loading, etc. and not to collection of spillage and packing – which is already covered under the category of cargo handling service. It is not contended by the noticee that in case of weighbridge servicing and chemical wagon loading, they had not supplied manpower. On the contrary they have tried to bring into picture the issue of collection of spillage and packing thereof. When the SCN alleges in certain terms, the diversion adopted by the noticee shows that their argument has no merit whatsoever. Therefore, in case of particular activities mentioned in the SCN, the noticee had supplied manpower to Tata Chemicals Ltd. The case laws cited by the noticee pertains to lump sump work carried out by the party, which was not covered under manpower supply service. Further, Shri Khetabha Arjanbha Sumaniya, partner and authorised signatory of the noticee in his statement dated 13.10.2010 has also admitted this fact that they are supplying Manpower for factory work as and when required by M/s Tata Chemicals Ltd. Therefore, the case laws, relied upon by the noticee, are not applicable to the present case.

27. Witn regard to cleaning activity service, it is contended by the noticee that collection of spillage of finished goods would not amount to cleaning of any premises, buildings, tank etc. and therefore they are not liable to pay service tax under this category. On perusal of the SCN, it is clear that the demand on account of cleaning service does not pertain to work of collection of spillage but it pertains to godown cleaning, wagon cleaning etc. Therefore, it appears that the noticee has again tried to mislead the proceedings. A perusal of the sample copies of invoices attached by the noticee with their defence reply would show that the description of work given in the invoices reads as: “Removal of waste & Debris from operating area”. I reproduce Bill No. 1411/2007/2008 dated 1.4.2008 issued for the Contract of Misc Jobs in SCM Dept during the period of 11.3.2008 to 31.03.2008:

M/s Arjanbha Derajbha & SonsMOJAP

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To,TATA CHEMICALS LTD. Date : 1/4/2008MITHAPUR-361 345

Contract for : MISC JOBS IN SCM DEPT DURING THE PERIOD OF DT.11/3/08 TO 31/3/08

Bill No. 1411/2007/2008S. O. No. 4610000112

TARPOLINE SPREADING COVERING & UNCOVERING & FINISHED PRODUCTS

“REMOVAL OF WASTE & DEBRISE FROM OPERATING AREA”_________________________________________SQM RATE AMT_________________________________________203837.45 0.4630 94376.74

As seen from the abovementioned invoice, it is clear that the description of work given in the invoices itself is not for collection of spillage of finished products (for this work separate invoices are issued), but it is clearly for cleaning of the specific premises of the factory of Tata Chemicals Ltd. and therefore covered under the category of cleaning services.

28. The noticee has also contended that the value taken for the purpose of computing tax was required to be considered as cum-tax value as given under Section 67 of the Finance Act, 1994. They have cited case laws in support of their claim. In this regard, I find that the Tribunal in its recent judgement in the case of Dhillon Kool Drinks and Beverages Ltd as reported at 2011 (263) ELT has held that the benefit of cum-duty-price is not be to extended in cases where the duty / tax evasion occurred on account of fraud, collusion, willful mis-statement, suppression of facts or contravention of any of the provisions with intent to evade payment of duty/tax. The Tribunal at para of the said judgement has held that:

“ … Moreover, Hon’ble Supreme Court in the case of Amrit Agro Industries Ltd. V. Commissioner of Central Excise, Ghaziabad reported in 2007 (210) ELT 183 (S.C.) has held that unless it has been shown by the manufacturer that the price of the goods includes the excise duty payable by him, no question of exclusion of duty element from the price for determination of value under Section 4(4)(d)(ii) will arise.”

29. Further the Hon’ble Supreme Court in the case of Amit Agro Industries Ltd. vs Commissioner of Central Excise, Ghaziabad as reported in 2007 (210) ELT 183 (SC) has held that “unless it is shown by the manufacturer that the price of the goods includes excise duty payable by him, no question of

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exclusion of duty element from the price for determination of value under Section 4 (4)(d)(ii) will arise”

30. Both the above cited cases are squarely applicable to the present case as the facts of both the cases are identical. In the case on hand, I find that the noticee at no point of time disclosed the entire facts to the department in any manner and the same has come on records only when audit of the records of M/s Tata Chemicals Ltd. was conducted by the department. Hence, the noticee has deliberately suppressed material information from the department regarding services under the category of ‘Cargo Handling Service’ to avoid payment of service tax. This information have been collected by the department only from the service recipient M/s Tata Chemicals Ltd. Hence, by relying upon these decisions, I hold that the cum-tax-value benefit cannot be extended to the noticee.

31. In regard to the demand of interest, I find that the noticee has so far not paid the service tax due to the exchequer. Section 75 of the Finance Act, 1994 provides that every person liable to pay service tax in accordance with the provisions of section 68 or the rules made thereunder, who fails to credit the tax or any part thereof to the account of the Central Government within the period prescribed, shall pay simple interest at such rate fixed by the Central Government by notification, for the period by which such crediting of the tax or any part thereof is delayed. Thus, it is clear that interest is chargeable from an assessee who has withheld the payment of any tax as and when it is due and payable. Interest is compensatory in character as held by the Hon’ble Supreme Court in the case of Pratibha Processors Vs. Union of India reported in 1996 (88) E.L.T. 12 (S.C.). In Pratibha Processors (supra), the Hon’ble Apex Court held as follows:

“13. In fiscal Statutes, the import of the words – “tax”, “interest”, “penalty”, etc. are well known. They are different concepts. Tax is the amount payable as a result of the charging provisions. It is a compulsory exaction of money by a public authority for public purposes, the payment of which is enforced by law. Penalty is ordinarily levied on an assessee for some contumacious conduct or for a deliberate violation of the provisions of the particular statute. Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable. The levy of interest is geared to actual amount of tax withheld and the extent of the delay in paying the tax on the due date (emphasis supplied). Essentially, it is compensatory and different from penalty – which is penal in character.”

Thus, interest is chargeable from the noticee for the period for which they have withheld the tax payable

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32. The noticee has further contended that in the present case there is no fraud, suppression, wilful mis-statement of facts and hence penalty under Section 78 cannot be imposed. They have relied upon the decision of Hon Gujarat High Court in the case of Steel Cast Ltd.-2011(21) STR 500 (Guj.) in support of their contention. It is observed that the noticee has no point of time disclosed the fact to the department in any manner that they were providing taxable services. This fact was disclosed only when the statement of partner of the noticee was recorded on 13.10.2010. Further, on going through the written submission of the noticee, it is noticed that they have not contested the case on the grounds of limitation which proves that they are admitting that the extended period of five years is correctly invoked in the SCN. Therefore, I hold that the noticee had deliberately supressed the facts from the department that they were providing taxable service to avoid the payment of service tax and for this deliberate act they need to be penalized under Section 78 of the Finance Act, 1994. The case law cited by the noticee is also not applicable to their case on this count.

33. The noticee has further contended that there is no short payment of service tax, penalty under Section 76 cannot be imposed. They have also relied upon the decision of Hindustan Steel Ltd. vs State of Orissa-AIR 1970 (SC) 253, which was followed by the Tribunal in the case of Kellner Pharmaceuticals Ltd. vs CCE-1985 (20) ELT 276 (SC). They have further argued that even if any contravention of provisions was there, the same was soley on account of their bonafide belief. In support of this, they relied upon the judgment of Hon Supreme Court in the case of Puspam Pharmaceuticals Co. vs CCE-1995 (78) ELT 401 (SC) and CCE vs. Chemphar Drugs and Liniments01989 (40) ELT 276 (SC). As discussed hereinabove, if there was bonafide belief, the noticee would have paid service tax for the period prior to under dispute but no such payment has been made by the noticee. Further, when caught, anybody would say that he was ignorant about the levy of tax. Thus, ignorance pleaded by the noticee cannot be the basis to believe that there was any bonafide belief on the part of the noticee. It is true that mere inaction cannot be held as suppression of fact. But, as discussed, in the present case, the noticee has, till date, not shown their bonafide by paying applicable service tax, therefore, the plea of the noticee is not tenable. For the same reasons, the judgments of Hon. Supreme Court in the cases of Collector Vs. Chemphar Drugs – 1989 (40) ELT 276 (SC) and Pushpam Pharmaceuticals Company Vs. CCE - 1995 (78) ELT 401 (SC) are not applicable to the present case. Since the noticee has delayed payment of service tax due, the noticee appears liable to be penalized under section 76 of the Finance Act, 1994, also.

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The use of the words, “who fails to pay such tax, shall pay, in addition to such ….… a penalty which shall not be less than two hundred rupees for every day during which such failure continues….” in section 76, ibid indicates that it was an in-built provision in the statute itself for payment of penalty at a specified scale for every day for delay, in addition to the tax and interest, leviable thereon under section 75 of the Finance Act, 1994. The words “shall pay” as used in section 76 of the Finance Act, 1994, in regard to penalty on account of non payment of tax within the stipulated time indicate that the penalty there under has to be paid mandatorily by the tax payer.

34. Regarding imposition of penalty under Section 77 of the Finance Act, 1994, I find that the noticee have not registered themselves under the category of services viz. Cargo Handling Services, Manpower Recruitment & Supply Service and Cleaning Service and for such contraventions penalty under Section 77 of the Finance Act, 1994 is imposable. Further, the late fee as applicable under Section 70 of the Finance Act, 1994 is also liable to be paid by the noticee as they have failed to file ST-3 Returns for the period under dispute.

35. Further, regarding impostion of penalty simultaneously under Section 76 and 78 of the Finance Act, 1994, I find that the show cause notices cover the period from 2005-06 onwards. It is during this period that fifth proviso to Section 78 of Finance Act, 1994 has been added w.e.f. 10.5.2008 through a legislative amendment, providing that if penalty is payable under section 78 ibid, the provisions of Section 76 shall not apply. As already held, in the facts and circumstances of the case, penalty on the noticee is imposable under Section 76 as well as Section 78 of Finance Act, 1994. Now the question is which legal provisions for imposition of penalty on the noticee would apply in the case on hand in the backdrop of the fact that the impugned notice covers the period running from 2005-06 onwards and fifth proviso to Section 78 providing that if penalty is payable under Section 78, the provisions of Section 76 ibid, shall not apply, is added through a legislative amendment mid-way, w.e.f. 10.5.2008. Since amendment to Section 78 by way of insertion of the fifth proviso as aforesaid is not with retrospective effect, the change has to have effect only prospectively. Therefore, Section 76 as well as Section 78 would apply for the period upto 9.5.2008 and w.e.f. 10.5.2008, the provisions of Section 76 ibid, would not apply if penalty is held payable under Section 78, and penalty under Section 78 alone shall be payable by the noticee. As for the case on hand, it is held that penalty is payable by the noticee under Section 76 as well as Section 78 of the Finance Act, 1994 for the period upto 9.5.2008 and with effect from 10.5.2008 only Section 78 of the Finance Act, 1994 be applicable in

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the facts and circumstances of the case. Therefore the noticee is liable to penalty under section 76 as well as section 78 of the Finance Act, 1994 accordingly.

In this case, since the noticee has failed to pay the tax within the due date as

indicated hereinbefore, penalty under Section 76, ibid, is imposable for the period from 2005-06 to 09.05.2008 on the noticee at the rate prescribed therein. Quantification of penalty payable under Section 76 ibid is possible only when the noticee fully discharges the service tax liability alongwith interest due on account of delayed payment of tax. However, as specified in Section 76, ibid, penalty payable thereunder shall not exceed the amount of service tax payable for the period from 2005-06 to 09.05.2008.

36. In view of the above, I pass the following order:

ORDER

(i) I confirm and demand the service tax of Rs. 16,28,027/- (Rupees Sixteen Lakh Twenty Eight Thousand Twenty Seven Only) from the Noticee, M/s Arjanbha Derajbha & Sons, under proviso to Section 73(1) of the Finance Act, 1994;

(ii) I order the Noticee, M/s Arjanbha Derajbha & Sons, to pay interest on the amount confirmed at Sl. No.(i) above, under the provisions of Section 75 of the Finance Act, 1994 at appropriate rate.

(iii) I impose a penalty of Rs.200 per day or two percent per month whichever is higher on M/s Arjanbha Derajbha & Sons, on the service tax due and confirmed for the period from 2005-06 to 9.5.2008 under the provisions of Section 76 of the Finance Act, 1994 starting with the first day after the due date till the date of actual payment of service tax, provided that the total amount of the penalty payable shall not exceed the service tax due and confirmed for the period from 2005-06 to 9.5.2008.

(iv) For the service tax due and confirmed for the period from 10.5.2008 onwards, no penalty is imposed under Section 76 of the Finance Act, 1994, as amended, in view of fifth proviso to Section 78 inserted in Section 78 by the Finance Act, 2008 (18 of 2008) dated 10.5.2008.

(v) I impose a penalty of Rs. 5000/- on M/s Arjanbha Derajbha & Sons, under the provisions of Section 77 of the Finance Act 1994.

(vi) I order the noticee M/s Arjanbha Derajbha & Sons, to pay late fee as prescribed under Section 70 of the Finance Act, 1994 read with rule 7C of the Service Tax Rules, 1994

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(vii) I impose a penalty of Rs.16,28,027/- (Rupees Sixteen Lakh Twenty Eight Thousand Twenty Seven Only) on M/s Arjanbha Derajbha & Sons, under the provisions of Section 78 of the Finance Act, 1994. If the amount as determined under Sr. No. (i) above is paid within 30 days from the receipt of the order alongwith the interest payable then as per proviso to Section 78 the penalty will be only 25% of the service tax determined at Sl. No. (i) above. The benefit of reduced penalty shall be available only if the amount of penalty so determined has also been paid within the period of thirty days from the receipt of the order.

(M. GNANASUNDARAM) JOINT COMMISSIONER

F. No. V.ST/15-307/Adj./2010

By. R.P.A.D.

ToM/s. Arjanbha Derajbha & Sons, Vill: Mojap, Post, Mitapur, Distt. Jamnagar

Copy to:

1. The Assistant Commissioner (RRA), Central Excise, Rajkot.2. The Deputy Commissioner, Service Tax Division, Rajkot.3. The Deputy Commissioner, Tax Recovery Cell, HQ, Rajkot.4. The Superintendent, Service Tax Range-Jamnagar.5. Guard file.

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