TaxTMI 
TaxTMI 
2008 (7) TMI 66
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....lore confirming Order-in-Original No. 3/2007 dated 31.1.2007 passed by the ACCE, EOU Division, Mysore. 2. The appellants were (i) transporting limestone from outside of mines site at BGD mines to yard at VISL township for breaking/crushing; (ii) breaking/crushing of limestone boulders into jelly of size 10 mm to 50 mm at yarn to VISL township; and (iii) loading, transporting of limestone jelly from crushing yarn in VISL township and unloading at B.F. Yard/Bin. 3. Revenue proceeded to consider such transportation to fall within the category of "Cargo Handling Service" and raised demands for the period 16.10.2002 to 27.8.2003 and confirmed the demands and imposed penalties. The assessee's contentions have been paragraphed by the Commiss....
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....aid circular states that the services which are liable to tax as cargo handling agent are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading, and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. That the circular gives examples of cargo handling agencies such as Container Corporation of India, Airport Authority of India, ICD, Container Freight Stations, etc. That they are not a cargo handling agency in the same category or nature as the examples given in the circular. (iii) That the adjudicating authority has disregarded the provisions of Section 65A of the Finance Act, 1994 that lays down the law for classification of s....
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....id down in Section 65A, the activity of production or processing or goods is classifiable under clause (v) of "business auxiliary services" as defined in Section 65 (19). That the service tax is applicable only from 16-6-2005. (v) That the adjudicating authority has recorded in para 14 of the impugned order that the activity of breaking and crushing of lime stone does not change the essential character of lime stone and that no new product emerges and therefore, the process cannot be termed as "manufacture". That by virtue of Notification No. 8/2005-Service Tax dated 1-3-2005 they have been exempted from payment of Service Tax. (vi) That the service provided to VISL was transportation of goods and production or processing of goods for....
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....eriod of limitation is not invokable. (x) That when there is no justification for demand of service tax, the question of imposition of penalties or demanding interest does not arise. 3.1 The above contentions were negatived by the Commissioner (A) and held that the activity has to be classified only under "Cargo Handling Services". He rejected the assessee's plea that the classification of the services should be based on the main activity of breaking and crushing of limestone and the same should be classified under "Business Auxiliary Services" and that was introduced for the first time on 1.7.2003. He also did not agree with the plethora of case-laws relied by the assessee holding that they are distinguishable, without giving any rea....
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....esent case, the assessee is not handling the goods by loading the same from one place to unloading it at another place. The essential characteristic of the appellant's activity was breaking/crushing of limestone boulders into jelly and incidentally handing over to SAIL. 6.1 In the case of CCE, Jaipur Vs. Laxmi Trading Co. - 2008 (10,) STR 620 (Tri.-Del.) after examining the contract, the Tribunal held that loading is incidental to mining and transportation appears reasonable. It was held that even if cargo handling is taken as a separate service, the same is rendered to the appellant himself in completing the entire work assigned to the respondent by the contractor. 6.2 In the case of CCE, Jaipur-I Vs. Giriraj Brothers - 2008 (86) RLT....