I.P. Lal, J.
1. The present Appeal is filed against the above Order-in-Appeal and briefly, the facts of the case are that M/s. Utpal Chetia, Proprietor-Shri Utpal Chetia was awarded a contract by M/s. Brahmaputra Valley Fertilizer Corporation Ltd. (BVFCL), vide Work Order No.BP-111/NIT-MFL/2002-2003/709 dated 23.10.2002, which has been extended from time to time. The scope of services as per contract rendered by him was - stacking of filled bags in Stacking Platform, as per requirement of BVFCL; loading from stacks to wagons/trucks, as directed by the Bagging Plant Authority; and to engage qualified supervisors to ensure that proper number of bags are stacked/loaded into trucks/wagons and to supervise their workmen. The Department treated the aforesaid activity as rendering œCargo Handling Services?, and accordingly, issued a show cause notice dated 17.08.2006 demanding Service Tax of Rs.30,84,025/- and Education Cess of Rs.18,493/- for the period, August, 2002 to March, 2006. The show cause notice was adjudicated by the ld. Additional Commissioner confirming the demand, imposing the penalty of equal amount and recovery of interest at the appropriate rate. In appeal before the ld. Commissioner (Appeals), he upheld the order of the lower authority. Hence, the present Appeal is before this Tribunal.
2. Ld. Advocate for the Appellant submitted that in this case, the role of the Appellant was to provide manpower to BVFCL for managing various points in the Bagging Plant. In fact, BVFCL has its automatic machine which picks up the bag, fills it and stitches and drops the urea packed bags upto and into Stacking Platform or into the truck or wagon automatically. At certain points, the Appellants assistance is required to provide services of manual filling, when the filling machine malfunctions and urea are thrown out of the bags. Such urea are to be filled and stitched manually into the bags, weighted in the machineries owned by BVFCL and to carry such bags manually to platform for stacking or loading into truck or wagon not owned by the Appellant. Thus, the role of the Appellant is for rendering services being supportive and ancillary only. It is the contention of the ld. Advocate that in a similar case, the Tribunal in the case of J.J. Enterprise vs. CCE, Raipur, [2005(2)STT-161-CESTAT:Del.] held that the appellant was neither the owner of the machine nor had it rented out, and his role was only for rendering the supportive and ancillary service, being completely an outsider to the main cargo handling activity. The ld. Advocate also submits that this case law was brought to the notice of the ld. Commissioner (Appeals), but he had not given any finding on this aspect. It is the contention that according to sub-clause (zr) of Clause 105 of Section 65 of Chapter V of the Finance Act, 1994 (as amended), in relation to Cargo Handling Service, reads as follows:-
œTaxable Service? means any service provided or to be provided to any person by a cargo handling agency in relation to Cargo Handling Services.
2.1.It is the case of the Appellant that, they are not cargo handling agency.
2.2.The ld. Advocate further submits that this Tribunal in case of Sainik Mining and Allied Services Ltd. vs. CCE, C. and S.T.[2008(12)STT-433(Kol-CESTAT)], held that cargo in commercial parlance has a definite connotation which is carried as freight in a ship, plane, rail or truck, and that mechanical transfer of coal from the coal face to tippers and subsequent transportation of coal within the mining area, do not come under the purview of Cargo Handling Service.
3. Ld. AR for the Revenue reiterates the findings of the ld. Commissioner (Appeals).
4. Heard both sides and perused the records. We find that the ld. Commissioner (Appeals) in his impugned Order has merely quoted the observation of the lower authority that the plea of the Appellant was that he was an individual and not a cargo handling agent, as the Appellant was a proprietary firm. The ld. Commissioner (Appeals), after relying on para 3.08 of the subsequent Work Order of BVFCL dated 12.11.2005, which provided for reimbursement of service tax at the rate of 10.20% adv. of the actual executed work by BVFCL, has arrived at a conclusion that service rendered by the Appellant, is taxable as Cargo Handling Services without examining the nature of the services rendered by the Appellant under various contracts vis-a-vis classification of the said services. We find that the ld. Commissioner (Appeals) has not considered any of the case laws cited before him. We, therefore, find that the Order of the ld. Commissioner (Appeals) is non-speaking and accordingly, the same is set aside. Consequently, we remit the matter back to the ld. Commissioner (Appeals) for passing a fresh order, after considering the activity of the Appellant, as emerged out from their various contracts and in line of various case laws. Needless to mention that a reasonable opportunity of hearing be granted to the Appellant to present their case. All issues are kept open and both sides are at liberty to adduce evidences in their support.
5. In these circumstances, the Appeal is allowed by way of remand.