TaxTMI 
TaxTMI 
2019 (3) TMI 1098
X X X X Extracts X X X X
X X X X Extracts X X X X
....athered, noticed that the Appellant is providing the services of cargo handling about handling soya seeds, DOC, coal, etc. in the factory premises and for local transport from the factory to Mandideep Railway Station for loading in the racks but they have not paid the appropriate service tax despite that the services of cargo handling have been made taxable w.e.f. 16.08.2002. Resultantly, vide a SCN No. 9417 dated15.10.2012 the service tax amounting to Rs. 45,94,688/- for the period w.e.f. 2007-08 to 2011-12 was proposed to be recovered alongwith the interest under Section 75 of the Finance Act and the penalties under Section 76, 77 and 78 thereof. The said proposal was confirmed initially vide Order-in-Original No. 25 dated 26.03.2014. The....
X X X X Extracts X X X X
X X X X Extracts X X X X
....butting these arguments, Ld. DR has impressed upon the contract as entered into by the appellant, emphasizing that the contract was mainly for the loading of the cargo. Para 9 thereof has been made major emphasis impressing upon that the agreed price at the rate of Rs. 63 per MT of cargo loaded is mentioned to have included the transportation charges as well. It is submitted that the intent of contract is clear that the transportation was not the main activity rather it was the loading of the cargo. Hence, there is no infirmity while confirming the alleged impugned demand. With respect to the charges, Ld. DR has brought to our notice the letter of the appellant bearing No. 1 dated 28.03.2011 where the appellant himself had given the bifurca....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ger baggage or mere transportation of goods. The CBEC had clarified vide Circular No. 1/2002 dated 01.08.2002 that the services liable to tax are thos provided by cargo handling agencies who undertake the activity of packing, unpacking, means loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. The notice has undisputedly undertaken the activity of loading and unloading the goods meant to be transported. The perusal thereof makes it clear that for anything to be defined as cargo handling service, it should be a bundle of activities as that of loading, unloading, packing or unpacking of the cargo alongwith providing for freight with or without the containers. The de....
X X X X Extracts X X X X
X X X X Extracts X X X X
....es. It becomes clear that the activity actually is of trans-shipment of the goods through the trucks of the appellant. We are of the firm opinion from the terms of this agreement that loading thereof was merely incidental. Though Ld. DR has laid emphasis on para 9 thereof which reads that the agreed value per metric ton is inclusive of transportation while emphasizing that transportation is not the main activity but we are not convinced with the said submission in the light of the remaining other 12 terms and conditions. Use of word 'inclusive of transportation' is opined to be a mere language error. The main activity of the appellant appears to be that of the transportation. 8. From the Order under challenge we observe that the Ld. Adju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. No separate component of compensation for loading and unloading is seen from the contract. IN this respect, the contract under consideration is different from the contract considered in the case of Gajanand Agarwal where there was a rate for loading of railway wagons based on the number of wagons loaded. In the contracts under consideration there is a predominant activity of transportation. The cargo handling activity is incidental to transportation. Revenue's attempt to convert such services into cargo handling service to deny the abatement available to value of services of transportation of goods by road is too farfetched to find any legal support. It can be seen from clause 4 of the contract with HINDLCO that the base transportation c....