TaxTMI 
TaxTMI 
2017 (9) TMI 1064
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....of "cargo handling service". The original authority imposed penalty of equivalent amount under Section 78 and further penalty under Section 76 & 77 of the Finance Act, 1994. 2. The brief facts of the case are that the appellants have entered into an agreement with M/s Rajasthan State Mines and Minerals Limited, Jodhpur for providing services of loading limestone gitties into trucks, transportation from Sonu Landstone Mines- I & II to Jaisalmer railway station, unloading the same at railway plots, stacking and then loading these gitties into railway wagons. The Revenue entertained a view that the activities undertaken by the appellant will fall under the taxable category of "cargo handling service" in terms of Section 65 (23) read with Se....
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.... of the agreement, the rates are prescribed for each activity, as stated above. Out of the total payment of Rs. 73/- PMT, Rs. 68/- PMT is for transportation of lime stone. Rs. 5/- is attributable towards stacking (Rs.0.50/-) and mechanized loading into the wagons (Rs.4.50/-). The contract categorically brings out the principal scope of the work undertaken by the appellant, which is transportation of limestone over a long distance of more than 100 kms. The incidental activity of stacking and further loading into railway wagons does not provide the essential character to the contract. 4. The ld. Consultant relied on various decided cases in support of his submissions. He also relied on certain clarifications of the CBEC on this issue. 5....
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....ervices provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling services incidental to freight, but does not include handling of export cargo or passenger baggage or more transportation of goods." Section 65(105)(zr) defines 'taxable service' as under- "taxable service" means any services provided or to be provided to any person, by a cargo handling agency in relation to cargo handling services." 7. We have examined the terms of agreement which is the basis of the activities carried out by the appellant. We have also examined the tender document based on which the appellant offered the tender and was awarded the contract. The qualification to undertake the work for the c....
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....f Section 65 A while classifying a composite service. It was clarified that such services shall be classified based on the service which gives the essential character to the activity. There is a need to determine whether a given transaction is the one containing main and ancillary element or the one containing multiple and separate measureable elements. In the case of transaction containing a measure of ancillary elements, classification is to be determined based on the essential features or the dominant element of the transaction. 9. We note that a similar issue came up for decision by the Tribunal in Hira Industries Ltd, 2012 (4 TrI. 430, CESTAT ND). Tribunal observed as below: "18. The next issue is the classification of service re....
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....he said case, the client discharged service tax under GTA service for transportation of coal. For the loading of cargo, the Revenue proceeded to demand service tax under cargo handling service. In Gayatri Carriers (P) Ltd also, there was a loading of coal using pay loaders. The transport is within the mining area. It was clearly recorded that the party is engaged in loading/unloading/handling of coal in tipper trucks and its transportation within the mining area. In Gajanand Agarwal (supra), the Tribunal was examining almost similar type of activities. It was concluded that the nature of activity carried out by the party was to load coal in the railway wagons and the freight of cargo is incidental to such cargo handling. 11. We find none....