AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 1315
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....ons, both by the contractor's pay loaders. Department opined that said activity is squarely covered under the ambit of definition of 'Cargo Handling Services', as defined under Section 65(23) of the Finance Act, 1994. Resultantly, vide which the Show Cause Notice No. 85/2013 dated 18.10.2013, a demand of Rs.35,07,076/- for a period from September, 2008 to March, 2010 was proposed to be recovered from the appellant, alleging the same to be the tax liability for rendering the 'Cargo Handling Services' while transporting the coal to M/s. NCL. The said proposal was initially confirmed vide Orderin- Original No. 93/2014 dated 13.10.2014. The appeal thereof has been rejected vide the order under challenge. 3. We have heard Shri Prashant Shukla, learned Advocate for the appellant and Shri Ravi Kapoor, learned Authorized Representative for the department. 4. Learned Counsel for the appellant has mentioned that the service rendered by the appellant is merely the transportation of coal in tipping trucks within the mining area after loading such coal on such trucks by pay loaders and as such it is not falling in the definition of 'Cargo Handling Services'. It is further mentioned that M/s. ....
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....oned that the issue otherwise was already in the notice of the department as in the year 2007, a show cause notice was issued to M/s. NCL wherein it was held that in the given circumstances, it is M/s. NCL which is liable to pay tax, the services in question being the 'Goods Transportation Service'. Thus seen from this observation also no suppression of facts can be alleged against the appellant. Hence, there remains no ground from invoking extended period of limitation. The show cause notice would have been issued during the normal period. To support these contentions, learned Counsel has relied upon the following decisions: (i) Sankhla Udyog Vs. Commissioner of C.Ex. & S.T., Jaipur reported in 2015 (38) S.T.R. 62 (Tri.-Del.) (ii) Rajasthan Renewable Energy Corporation Ltd. Vs. Commr. of C. Ex., Jaipur - I reported in 2017 (51) S.T.R. 269 (Tri.-Del.) (iii) Commr. of C. Ex., Jaipur-I Vs. Rajasthan Renewable Energy corpn. Ltd. reported in 2018 (15) G.S.T.L. 661 (Raj.) (iv) Rochem Separation Systems (India) P. Ltd. Vs. Commr. of S.T., Mumbai-I reported in 2015 (39) S.T.R. 112 (Tri.-Mumbai) (v) Commr. of S.T., Mumbai - IV Vs. Rochem Separation Systems (I) P. Ltd. reporte....
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.... they have no liability to be discharged under service tax regime nor to get themselves registered. The submissions on behalf of department are prayed to be rejected. 7. Having heard the rival submissions of the parties, perusing the records, we hereby observe and hold as follows: To appreciate the contentions herein, foremost, it would be appropriate to first go through the definition of 'Cargo Handling Service' and 'Goods Transport Agency Services'. The former being defined under Section 65(23) of the Finance Act, 1994 and is taxable under Section 65(105)(zr) of the Act and the latter is defined under Section 65(50b) of the Act which is taxable under Section 65(105)(zzp) of the Act. Both are reproduced as follows: "65(23)- 'cargo handling service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods." ....
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....ly an illustrative list. There are several other firms that are engaged in the business of cargo handling services. xx xx xx 15. Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency." 9. Hon'ble Supreme Court has accepted Hon'ble High Court interpretation to the Entry viz. 'Cargo Handling Service' where it was observed that there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and the service provider must independently be involved in loadingunloading or packing-un....
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....s held as follows : " the dominant activities under the contract are movement of mineral within the mining area and loading to Railway Wagon, which includes loading and unloading, are merely incidental while the activities undertaken are principally transportation of coal within the mining area, hence, the gross amount received for the same cannot be taxed under the category of Cargo Handling Services. Therefore, we are of the view that the Service Tax demand of Rs.2,47,60,534/- on activities of transportation with incidental loading and unloading including wagon loading is principally and dominantly for transportation of coal within the mines and hence, cannot be taxed under the category of Cargo Handling Service and accordingly, set aside." 10. We also observe that department itself from time to time has been issuing several circulars clarifying this overlapping of two services with respect to one activity of transporting load through truck tippers. One such circular is dated 06.08.2008. It reads as follows: "3. Issue : GTA provides service to a person in relation to transportation of goods by road in a goods carriage. The service provided is a single composite service whic....
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.... service and, therefore, the abatement of 75% would be available on it." 11. Subsequent has been a Circular No. 186/5/2015-S.T. dated 05.10.2015, wherein it has been clarified that if GTA Service provider is providing certain ancillary services such as loading/unloading, packing/unpacking, transshipment and temporary storage in the course of transport of goods by road then value of such ancillary services should be counted towards GTA Services. He has further submitted that learned Original Authority has relied on said CBEC Circular as one of the grounds for his decision. He has also submitted that the issue is covered by the decision of this Tribunal in the case of M/s. Rungta Projects Ltd. v. CCE reported at 2017-TIOL-3782-CESTAT = 2018 (9) G.S.T.L 404 (Tri.-All.). We also observe that in the case of Tycoon Industries Pvt. Ltd. V. CST reported in 2019-TIOL- 1509-CESTAT-Kol, it is held by this Tribunal while dealing with similar facts and circumstances, that the dominant activities under the contract are movement of mineral within the mining area and loading to Railway Wagon, which includes loading and unloading, are merely incidental while the activities undertaken are principa....