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2014 (6) TMI 393
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....eaps of coal/mineral ore in the mines and thereafter transport the same within the mines area up to the railway sidings, where coal/ore is unloaded into the railway wagons. The contracts mentioned separate charges for loading of coal/ore at the heaps into dumpers/tipper trucks, transportation of coal/ore from the heaps to the railway siding and loading of the coal/ore into the wagons at the railway siding. The department treating the entire activity of the appellant as Cargo Handling Service taxable under Section 65 (105) (Zr) readwith Section 65 (23) of the Finance Act 1994, issued two show cause notices for demand of service tax alongwith interest and also for imposition of penalty. The first show cause notice dated 23/04/09 was issued fo....
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....imilar activity in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. vs. Commissioner, Central Excise, Customs and Service Tax, Bhubneshwar reported in 2008 (9) S.T.R. 531 has held that such activity is not covered by the definition of Cargo Handling Service, that same view has been taken by the Tribunal in the case of M. Ramakrishna Reddy, Civil Contractors vs. Commissioner of Central Excise and Customs reported in 2009 (13) S.T.R. 661 and N. Rajashekar & Co. vs. CCE, Mysore reported in 2008 (12) S.T.R. 760, that in views of these judgments of the Tribunal, the service tax demand by treating the appellant's entire activity as cargo handling is not sustainable, that in any case, the appellant are basically a tr....
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....oner in it and pleaded that the Tribunal in the case of CCE, Raipur vs. Gayatri Carriers Pvt. Ltd. reported in 2013 TIOL - 884 - CESTAT DEL. has held that the activity of M/s Gayatri Carriers Pvt. Ltd. of loading the coal at the coal heaps into the tipper trucks, and its transportation to the coal stock yard within the mines would be classifiable as cargo handling service, that the same view has been taken by the Tribunal in the case of Gajanand Agarwal vs. CCE, BBSR reported in 2009 (13) S.T.R. 138 (Tri. - Kolkata) and also in the case of Gangadhar Bulk Movers Pvt. Ltd. vs. CCE, Nagpur reported in 2012 (27) S.T.R. 258 (Tri. - Mumbai), that Hon'ble Orissa High Court in the case of Coal Carriers vs. CCE & CUS & ST, Bhubaneswar reported in 20....
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....rate rates for tipper loading that is loading of the coal/mineral ore into the tipper trucks, its transportation up to the railway siding and unloading of the coal/mineral ore into the railway wagons, the appellants contracts with their clients has to be treated as separate contracts for transportation, loading and unloading of coal/mineral ores, though under one instrument. The coal/mineral ore loaded by the appellant at the coal/mineral ore heaps and thereafter unloaded into the wagons was meant for transportation to its destination by railways and, therefore, the same would have to be treated as 'cargo' and its loading into the tipper trucks and thereafter unloading into the railway wagons would have to be treated as cargo handling serv....
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....g decisions on the issue involved in as much as in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. vs. CCE, Customs and Service Tax, Bhubneshwar (supra), in respect of similar activity, the Tribunal had taken the view that the same is not taxable as cargo handling service while in the case of CCE, Raipur vs. Gayatri Carriers Pvt. Ltd. (supra) and Gajanand Agarwal vs. CCE, BBSR (supra), the Tribunal in respect of similar activity had taken a contrary view. In view of this, keeping in view the Apex court's judgment in the case of Continental Foundation Jt. Venture vs. CCE, Chandigarh - I (supra), the non-payment of service tax has to be treated on account of bonafide belief of the appellant that their activity ....