TaxTMI 
TaxTMI 
2023 (6) TMI 1372
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.... so as to unload the materials mechanically. The work orders issued by Tata Steel separately provided for loading and unloading of materials and transportation of the materials within the factory premises under separate code numbers. The Appellant raised bills also separately upon Tata Steel for these activities. 2. In case of the amounts received in respect of loading and unloading of the materials, the Appellant paid service tax thereon upon classifying the job rendered under "Cargo handling Service" within the meaning of Section 65(23) of the Finance Act, 1994. In respect of the services of transportation of the materials within the factory premises, the Appellant classified the said services under "Goods Transportation Agency Services by Road," and not paid service tax under the bona fide belief that the service recipient TSL are liable to pay service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994. The Appellant stated that M/s. Tata Steel paid service tax on the transportation service upon availment of abatement as provided under Notification Nos. 32/2004-ST and 1/2006-ST as they satisfied the conditions laid down to avail the said exemption. 3. Pursuant to a....
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....in the Tata Steel Works factory. A perusal of the contract revealed that it was a composite contract in which Transportation was the primary service. Loading, unloading and stacking of the cargo was incidental to the main work. Accordingly, service tax was payable on Transportation service on the total value received. However, the Appellant has paid service tax under the category of Cargo Handling Service, towards the receipts made for loading, unloading and stacking work. Just because they have paid service tax under Cargo Handling Service for the unloading, loading and stacking services, it does not mean that the Appellant were liable to pay service tax under cargo Handling Service on the total value. We observe that Tribunal, Kolkata has decided the same issue in Appellant's own case vides Final Order No. 75532/2023. The relevant portion of the order is reproduced below: "8. We find that the issue involved in the appeal is as to whether the services rendered by the Appellant fall under the category of Transportation within mines as contended by the Appellant or cargo handling services as alleged by the Revenue. 9. We take note that in the Show Cause Notice, only three out o....
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....not render each sub-activity to be a different taxable service. Therefore, separate rates for the various intermediate activities for carrying out this composite service have been provided in the work order. We therefore hold that stand of the Revenue is flawed in treating each subservice/ activity as a separate taxable service, based on separate rates for each of them, without ascertaining the essence of the contract. Having held so, the next question for determination is the essential character of this composite service involving transportation and loading. Once it is found that the services are composite and has elements fitting into the definitions of both the services, recourse is to be taken to Section 65A.We note that Sub-section (2) clause (b) is relevant considering the facts of the case which provides that in case of composite service consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable. We find that four out of the five activities under the work-order viz of (i) Tru....
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....is not sustainable on the ground of limitation also. On the other hand, the Ld. Authorized Representative appearing for the Revenue has placed strong reliance on the judgment of this Tribunal in the case of Calcutta Industrial Supply Corpn. V Commissioner of S.T., Kolkata reported in 2019 (31) G.S.T.L 487 (Tri- Kolkata). We note that in the said case three types of contracts were involved. The first contract related to transportation of coal inside mines with incidental loading of coal with composite rates for both the services within mines. The second contract was for transportation of coal inside mines with incidental breaking, loading with separate rates for transportation and loading within mines. The third kind of contract was for hiring of pay loaders for mechanical transfer of coal into railway wagon and loading of coal into trucks/tippers within the mines. It was a categorical finding of the Ld. Commissioner that the contracts were mainly for loading and unloading of coal into railway wagon and tipper trucks mechanically with transportation of coal and such activity comes within the purview of the cargo handling services following Board's Circular no. 232/2/2006-CEX.4 da....