2017 (9) TMI 791

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....tions or implementations of projects and were also engaged in the activity of transportation and handling of coal. The appellant had entered into contracts for executing works orders received by them from their clients such as M/s Northern Coalfields Ltd. (NCL), M/s National Thermal Power Corporation Ltd. (NTPC), M/s Kanoria Chemicals Industries Ltd. (KCL) and M/s India Glycols Ltd. (IGL) etc. The work undertaken by them was transportation of coal mostly within the area of mines. The work orders issued to them by their clients included transportation of coal from different stock yards to crushing site, transportation of coal from stock yard of the factory to conveyor belt of the factory, manual breaking of coal, transportation of fly ash from Ash dykes, unloading of coal rakes and transportation of coal of factory yard and preparation of site for mining by drilling, blasting, earth work, excavation etc. Revenue conducted investigation against the appellant and during the investigation various statements were recorded. Statements of Shri Rajesh Gupta, Authorized Signatory and Shri A.J. Wilson, Manager (Projects) were recorded on various occasions and during the investigation various....

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....lant deliberately with intention to evade payment of duty did not furnish the return as prescribed under Section 70 of the Act for the period 01.04.2002 to 28.02.2008 and failed to disclose wholly and truly all the material facts necessary for their assessment. Further there were proposals for imposition of penalty. The said demand included demand on account of Cargo handling Service to the tune of Rs. 7,92,54,380/- and on account of Site Formation Service to the tune of Rs. 29,32,467/-. Subsequently another show cause notice dated 11.10.2010 was issued covering a period from 01.03.2008 to 31.03.2010 alleging that the appellant were required to pay service tax of Rs. 7,93,86,401/- towards Cargo handling Service. The said two show cause notices dated 18.03.2008 and 11.10.2010 were adjudicated through a common Order-in-Original No. (ST.168/2010 & 67/2011) 29 TO 30 OF 2011 dated 30.08.2011. Through their submission dated 04.06.2008 appellant submitted their reply to the said show cause notice dated 18.03.2008. In their reply to the show cause notice they submitted that their activity in respect of M/s NCL was loading and transportation of coals from the different stock yards and one o....

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....y did not appreciate the submissions made before him and confirmed the demand and imposed equal penalty through Order-in-Original dated 30.08.2011. The Original Authority also ordered to appellant to pay interest. Further Original Authority has also imposed penalty of Rs. 1,000/- under Section 77 of the Finance Act, 1994 and penalty @ Rs. 2,000/- for each default of non filing of ST-3 return for the period from 01.04.2008 to 31.03.2010. Aggrieved by the said order appellant is before this Tribunal in Appeal No. ST/1779/2011. 3. The appellant were also issued with show cause notice dated 08.05.2012 covering a period from April, 2010 to March, 2011 on same grounds contending that the services provided by appellant were cargo handling service and raised the demand of Rs. 2,44,79,555/-. Further another show cause notice dated 18.12.2012 was issued covering a period from April, 2011 to March, 2012 making allegations of providing cargo handling service and demand of Rs. 1,84,15,850/- was raised. The above stated two show cause notices dated 08.05.2012 and 18.12.2012 were adjudicated through Order-in-Original No. (ST-25/2012 & 165/2012) 12 & 13 of 2013 dated 20.12.2013. The submissions....

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....at breaking coal into smaller size was treated by Revenue as packing and such contention is not tenable in law. He has further taken order through the clarification issued by CBEC through Circular No. 104/07/2008-ST dated 06.08.2008 wherein at Para 3 CBEC have clarified that the guiding principle for classification is to indentify the essential characters of the activity and the clarification reads as follows:- "Such intermediate and ancillary services may include services like loading/unloading, packing/unpacking, transshipment, temporary warehousing, etc. which are provided in the course of transportation by road. These services are not provided as independent activities but are the means for successful provision of principle service namely the transportation of goods by road . Relying on the said circular, the learned counsel has submitted that in their activity loading and unloading was only incidental and guiding principle was transportation of coal from one place to another and therefore, as clarified by CBEC the service provided by them was covered by the definition of GTA. Further he has relied on following case laws (i) CCE, Ranchi v/s Modi Construction Company reported....