2008 (10) TMI 168 - AT - Service Tax

Applicant had made a composite agreement but at the same time billing separately for transportation and loading and unloading. We find that CBEC circular dated 1-8-2002 and 12-11-2007 clarifies that an activity of loading and unloading, even within the coal mining area, would be covered under the services of cargo handling service . The implication of the agreement between the appellant and coal fields needs to be gone into detail, which can be done only at the time of final hearing - prima facie not a case for complete waiver stay granted partly

Summary

Issues:
Waiver of pre-deposit of service tax and penalties under Sec. 78 and Sec. 76 of the Finance Act, 1994.

Analysis:
The applicant sought waiver of pre-deposit of a substantial amount of service tax and penalties. The issue revolved around the handling, loading, and unloading of coal within the coal fields of Western Coalfields Limited pursuant to an agreement for coal transportation. The applicant argued similarity with precedents like M/s. Sainik Mining & Allied Services Ltd. and S.S.V. Coal Carriers Pvt. Ltd., where unconditional stays were granted. However, the Respondent highlighted differences in facts with the mentioned cases.

Upon reviewing the impugned order, it was noted that the applicant had a composite agreement but billed separately for transportation and loading/unloading. Reference was made to CBEC circulars clarifying loading/unloading activities within coal mining areas as "cargo handling service." The Tribunal emphasized the need for detailed examination during the final hearing. Consequently, the applicant was directed to pre-deposit a specific amount within a stipulated time frame, with waiver from pre-deposit of the remaining balance subject to compliance and stay of recovery until appeal disposal. The decision was pronounced and dictated in court.