TaxTMI 
TaxTMI 
2011 (9) TMI 481
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....site. They required manpower for managing various points in the mechanized process. All the activities are done mechanically by machineries and conveyor belt owned by the cement manufacturer i.e. M/s SCW. The loading job is fully automated and the man power supplied by the appellant is related to only supplementing the mechanized process of loading of cement bags. The labourers provided by the appellant stand at different place in the mechanized process. The loading job are carried out through conveyor system which takes these bags to the exist point that goes right into/or wagon (sic. truck or wagon) At the exist point, the labourers simply give a helping push to the bags whenever necessary so that it falls in place and bags are properly stacked. Since labour supplied by the appellant are just supplementing the job of loading of cement bags into trucks/Railway Wagon, the services carried out by the appellant do not fall under the Cargo Handling Services. The case is squarely covered by the judgement passed in the case of M/s J.J. Enterprises v. CCE, Raipur reported in 186 ELT 189 (Tribunal-Delhi) and the Renu Singh & Co. v. Commissioner of Custom & Excise, Hyderabad 7-STE-397 (Tri....
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....tion only which was specifically excluded under the head of cargo handling services. Further under the agreement no relationship of bailor of bailee exists between the parties and being the goods are not transported outside the factory premises no documents of title is raised for any party. In this case also being the goods were shifted within the factory premises from Power Plant to cement plant and such goods are not meant for transportation outside the factory premises and, therefore, such goods are not comes in the definition of Cargo and, therefore, the services provided by the appellant are not covered under the CHS. Under this head, appellant has received the total payment of Rs. 28,52,917/- during the disputed period. The total payment received against each category of services as referred above during the period under appeal is given in Annexure-3 enclosed. The service recipient has also certified the nature of jobs carried out by the appellant and the copy of the certificate given by the service recipient is enclosed as Annexure-4." 2. The Revenue is of the view that the above activities are taxable under the entry for Cargo Handling Service as defined under clause ....
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....s on the decision of Hon'ble Rajasthan High Court in the matter of S.B. Construction Co. v. Union of India [2007] 6 STT 385. He relies on paragraphs 7, 8, 9 & 10 of the order which are re-produced below :- "7. We have heard learned Counsel for the parties and perused the pleadings. In order to appreciate the controversy involved it will be necessary to look into the actual nature of job assigned to the petitioner Firm, which has been placed an record as Annexure-3. It clearly appears that the 4th respondent gave contract to the petitioner Firm for unloading the coal from railway wagon to boiler bunkers of the Thermal Power Station. The contract has been awarded for unloading of coal through WT system, stacking/reclaiming of coal to S/R system and feeding of coal to boiler bunkers through conveyor system. For the convenience it can be divided into two parts as follows :- "(i) Unloading of coal from railway wagons through wagon tippling system and feeding to boiler bunkers of all the units through conveyor system, as required, (ii) Transportation of picked up coal/stones, Manual unloading and stacking thereof." 8. The scope of the said work has....
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....n made by the CBEC also supports the petitioner's contention. It clearly appears that the Service tax has been levied under the 'Cargo Handling', on such services which undertakes the activities of packing, unpacking, loading, unloading of goods to be transported by any means of transportation namely truck, rail, ship or aircraft. In the instant case the service provided by the petitioner Firm under the contract is distinct i.e. transporting coal from wagons to Thermal Power Station by conveyor belt and not by any means of transportation. Thus, we are of the view that the service rendered by the petitioner under the subject contract does not fall under the ambit of Cargo Handling Services and as such it is not liable to pay the service tax." 5. The Appellants point out that in the case of S.B. Construction Co. (supra), the cargo which came by railway wagon was being unloaded using a mechanised system to a factory and the High Court decided that such services will not come within the ambit of "Cargo Handling Services". The Appellant points out that they were doing exactly the same type of activity but while despatching the goods from the factory premises to the consum....
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.... in place and bags are properly staked. In a very few instances where the loader machines or conveyor belts are not reaching to the trucks, the work is carried out manually. We further certify that M/s Gayatri Construction is neither the owner of the machine nor they have taken it on rent. He is completely outsider to the mechanized process of cargo handling activity. The firm has no control on the mechanised process, in fact M/s Gayatri Construction Co. deploy only the manpower under the contract given for handling at plant site. Under the contract, M/s Gayatri Construction Co. is also doing the job for internal shifting of goods within the factory premises. These goods are not meant for transportation and were just shifted from one place to another within the factory premises. M/s Gayatri Construction is also doing the job of shifting the cement bags from plant site to Railway platform but in such cases it is not necessary that finally they will carry out the job of loading of cement bags into the truck or railway wagon. In case of loading from platform to wagon we are paying tax since beginning. M/s Gayatri Construction has also carried out other jobs of shifting of coal f....