2009 (4) TMI 160 - AT - Service Tax

Stay of pre-deposit Cargo handling service versus to mining and transportation held that - contract is for a series of activities starting from mining to delivery of the lime stone to the designated place of the client. The findings of the Commissioner (Appeals) that the loading is incidental to mining and transportation, appears reasonable. We feel that the respondent cannot be considered as an agent in the context of rendering the service of cargo handling. The cargo handling, even if taken as a separate service rendered, the same is rendered to the respondent himself in completing the entire work assigned to the respondent by the contract stay not granted.

Issues:
1. Whether activities undertaken by the applicant at Bhilai Steel Plant fall under "Cargo Handling Services" for the purpose of service tax.
2. Whether the demand for service tax amounting to Rs. 4,44,82,016/- for the period July 2003 to March 2006 is justified.
3. Whether the demand of about Rs. 90 lakhs for the period March 2004 is time-barred.
4. Whether the activities undertaken can be considered as falling under "Business Auxiliary Services" for the period September 2004 to February 2005.
5. Whether the loading and unloading activities are merely incidental to the primary activity of processing slag to separate scrap.
6. Whether the applicant has made out a case for waiver of pre-deposit of dues.

Analysis:
1. The applicant argued that the contract with Bhilai Steel Plant is a composite one primarily focused on processing slag to separate scrap, with loading and unloading being incidental activities. The applicant relied on a Tribunal decision stating that loading and unloading in a composite contract are not covered under "Cargo Handling Services." The Tribunal found the primary activity to be scrap recovery work, similar to the cited case, and agreed that the loading and unloading activities were incidental. Thus, the Tribunal held that the activities did not fall under Cargo Handling Services.

2. The demand for service tax amounting to Rs. 4,44,82,016/- for the period July 2003 to March 2006 was contested by the applicant, arguing that the activities were not taxable under Cargo Handling Services. The Tribunal, considering the nature of the contract and the primary activity of scrap recovery, waived the pre-deposit of dues and stayed the recovery pending appeal disposal.

3. The applicant contended that the demand of about Rs. 90 lakhs for the period March 2004 was time-barred. However, the Tribunal did not provide a specific ruling on this issue in the summarized judgment.

4. For the period September 2004 to February 2005, the applicant argued that the activities were treated as falling under "Business Auxiliary Services," and a pending appeal existed due to lack of COD clearance. The Tribunal did not provide a specific ruling on this issue in the summarized judgment.

5. The Tribunal found that the loading and unloading activities were incidental to the primary activity of processing slag to separate scrap, supporting the applicant's argument that these activities should not be charged under Cargo Handling Services.

6. The Tribunal concluded that the applicant had made a case for waiver of pre-deposit of dues and stayed the recovery pending appeal disposal.

← Previous Next →