THE HON’BLE SRI JUSTICE B.PRAKASH RAO AND THE HON’BLE SRI JUSTICE R.KANTHA RAO C.E.A.No.49 of 2009, C.E.A.No.15 of 2010, C.E.A.No.18 of 2010, C.E.A.No.20 of 2010 and C.E.A.No.38 of 2010 COMMON JUDGMENT: (Per BPR,J) Since common question arises in all these appeals, they are taken up together for disposal. Shorn of all the details, at the outset the question that is involved for consideration is as to whether on the facts and circumstances, the activity of the assessee amounts to ‘Packaging Services’ or ‘Business Auxiliary Services? Heard Sri A.Rajasekhar Reddy, learned Assistant Solicitor General on behalf of the appellants and Mr G Shivadas, learned counsel appearing on behalf of the respondents. Briefly, the facts are that, on issuance of show-cause notice complaining that the activities of the respondent like packaging unitization, strapping, loading of coils, seals, attending improper straps and seal feed and offline strapping are for transportation by any means of transport, and therefore, it does not merely include packaging but also loading of coils, which falls well within the mischief of Cargo Handling Service and thus it will not come within the category of Packaging Service. Therefore, the question centered on the category of taxable service for which the activities of the respondents would pertain. Admittedly, the facts are not in dispute. The respondents were granted facility of Centralized Registration during September 2004 with effect from 10-10-2004 and they paid service tax on their activity under the category of “Business Auxiliary Service” on the activity of the “Packaging Services’ rendered by them. However, according to the respondents, the activity of ‘Packaging Services’ attracted service tax only with effect from 16-6-2005 under the taxable service when packaging activity was brought into force from the state and they sought for incorporation of new service in their registration certificate, which was expedited and permission was granted. . Accordingly, they paid the service tax on the ’Packaging jobs under the category of ‘Business Auxiliary Service with effect from 1-4-2005 to 31-8- 2005. Later the payment was made in the category of ‘Packaging Service’ with effect from 1-9-2005. Hence the show-cause notices were issued for a period from 16-8-2002 to 30-9-2006. The authorities below and especially the Customs, Excise and Service Tax Appellate Tibunal, South Zonal Bench, FKCCI –WTC Building, K.G.Road, Bangalore has gone in detail into the various contentions urged from both sides and by referring to definition of “Cargo Handling Service” under Section 65 (23) of the Finance Act, 1994 and the Board’s Circular dated 1-8-2002 cited across the Bar, and categorically found as a finding of fact that the party during the relevant period were liable for service tax under the ‘Cargo Handing Service’ and they are not coming under the category of ‘Business Auxiliary Service’. Ultimately, the conclusion was to the effect that the party was doing packaging activity, which was brought under the service tax net only with effect from 16-6-2005, and therefore, it was held that the view taken that prior to that date whatever tax was paid under any of the category is liable to be refunded. Further, it is also not in dispute to the effect that the tax paid by them under the category ‘Business Auxiliary Services’ was not passed on to their customers. Thus, agreeing with the Commissioner (Appeals), the lower Appellate Authority held that the respondents are not liable to pay any service tax under any other category because only with effect from 16-6-2005, they are liable to pay service tax under the category of ‘packaging service’. We have perused in depth again all the material and also taken into consideration the factual aspect, which is not much in dispute as already stated and prima facie we are in agreement with the conclusions as arrived at by the appellate tribunal. In this regard, it also amply makes clear by referring to Section 65 (23) of the Finance Act, 1994 in regard to the definition of ‘Cargo Handling Service. In view of the above findings of fact, which we are in entire agreement, it is not necessary to delve into any other aspects or various decisions cited across the Bar from both sides. Even though an attempt was made on behalf of the appellant to draw distinction, but, however the facts themselves speak and stare at the very activity, which conclude ultimately to the same effect with which we are in entire agreement. We do not find merits in the above appeals and the same are accordingly dismissed. No costs. ________________ (B PRAKASH RAO,J) _______________ (R.KANTHA RAO,J) DATE:14-03-2011 GRK