2026 (4) TMI 1826

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....ore, since involved common issues, are taken up together for hearing and disposal. 2. Briefly stated the facts of the case are that the appellant, a proprietorship concern, engaged in providing services of removal of fly ash from the factory of M/s. West Coast Paper Mills Ltd., Dandeli and dumping of the same outside the factory. Alleging that the appellant had provided services under the taxable category of 'Cargo Handling Services' as defined under Section 65(23) of Finance Act, 1994, show-cause notices were issued from time to time during the period from 01.02.2007 to 31.12.2012 for recovery of total service tax demand of Rs.82,36,739/- with interest and penalty. On adjudication, the demands were confirmed with interest and penalty. A....

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....pers and no manual labour is involved. The main emphasis is disposal of waste material and transportation of the same from the factory premises to the dumping yard. No activity of packing or unpacking is involved; hence the allegation of the Department that they rendered 'Cargo Handling Service' is unsustainable. 3.2. Further, referring to the Universal Dictionary definition of 'cargo', she has submitted that fly ash and sludge which are not meant to be carried by a ship or aeroplanes or any other vehicles for commercial transportation (being in the nature of goods being bought and sold) but transported only for the purpose of dumping in the pits and deserted mines; hence, cannot be called as 'cargo' at all; therefore transportation of t....

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....ance Act, 1994 reads as follows:- Section 65(23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes,- (a) 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; and (b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods; 7. A plain reading of the said definition reveals tha....

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....ition is not provided under the Finance Act, 1994. We find that more or less in similar circumstances, this Tribunal in the case of Tripathi Transport Co. (supra) addressed the issue observing as: 5. The appellants are put to service tax liability only on the ground that the agreement mentions loading as one of the item of work under the scope of contract. Further, unloading charges @ Rs. 10 Per MT is separately mentioned. The transportation charges are mentioned as Rs. 450 Per MT. Admittedly the distance involved in movement of cargo is about 300 KM. In these factual circumstances, we find that allegation and finding that the amount of Rs. 450 Per MT is attributable mainly to cargo handling and incidentally to the transportation i....