2024 (4) TMI 864

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....f the final order dated 2.3.2017 passed by this Tribunal remanding the matter. 2. The appellant provides service of transporting coal to M/s. Western Coalfields Ltd. [WCL] and it's responsibilities include loading and unloading of the coal which it transports. During audit of WCL, the contracts awarded to the appellant were examined and the department felt that since the appellant also loads coal (using tippers/dumpers) and after transporting, unloads them, its service falls under the head 'cargo handling service'. 3. Accordingly, a Show Cause Notice [SCN] dated 8.4.2011 was issued covering the period 16.8.2002 to 31.12.2008 invoking extended period of limitation and demanding service tax of Rs. 64,48,863/- along with interest. It was....

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....erse charge basis. (c) The SCN dated 8.4.2011 is time barred and hence void. The department was already aware of the activity of the appellant and had issued SCN dated 16.10.2009 within the normal period of limitation. (d) Since the appellant is not liable to pay service tax, interest also cannot be charged. (e) Penalties imposed on the appellant deserve to be set aside. Submissions on behalf of Revenue 7. Ms. Jaya Kumari, learned authorised representative for the Revenue supports the impugned order and asserts that it is correct and calls for no interference. Findings 8. We have considered the submissions on both sides and perused the records. 9. The undisputed facts of the case are that the appell....

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.... be sustained. 12. The SCN dated 16.10.2009 needs to be examined on merits. The service rendered by the appellant was transporting coal from one location to another and also the loading and unloading for the purpose. The appellant's case is that transportation is the service and loading and unloading are incidental to it. Service tax had already been paid by the service recipient on reverse charge basis on goods transportation service. The department's case, on the other hand, is that loading an unloading is the main contract and this qualifies as cargo handling service and the appellant has to pay service tax. 13. Section 65A of the Finance Act deals with classification of services and it reads as follows: 65A. Classificatio....

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....s that the essential character of the service is loading and unloading. 15. When WCL required a service provider to move the coal from one location to another and for this purpose, engaged the service of the appellant, the essential part of the contract is of transportation. Loading and unloading are incidental to it. Loading and unloading per se are of no use except when they are in conjunction with the transportation. The intention of the WCL is to transport coal and in the process, it also gets loaded on to the truck and unloaded at the destination. 16. The Department's argument that the main activity is of loading and unloading cannot be accepted. An example will clarify the situation better. If 'A' wants to shift his residence an....