2019 (10) TMI 1106 - AT - Service Tax

Classification of service - local transportation/shifting charges collected by the Appellant which is inclusive of loading of tipper, transportation upto Railway Track Head and automated unloaded of tipper at the Railway Track Head - HELD THAT - A perusal of the show cause notice shows that the demand in the instant case is on the Work of Shifting of Iron Ore Lumps and Fines from Dump Yard to Railway Siding which involved loading at Dump Yard, transportation and unloading at Railway Siding. The Appellant has already paid service tax on wagon loading activities which is clear from the quantification made in the show cause notice. The contract is essentially for the transportation of goods which incidentally involving loading of tipper/unloading of tipper at Railway Track head/Railway Siding which cannot be taxed under the category of Cargo Handling Service simply because rates for loading of tipper at Dump Yard and unloading of tipper at Railway Siding is not provided separately. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Service Tax demand on local transportation/shifting activities involving loading and unloading in Automated Tipping Trucks.

Analysis:
The appeal arose from an Order-in-Appeal passed by the Commissioner (Appeal) of Central Excise, Customs & Service Tax, Bhubaneswar, concerning Service Tax demand on activities related to local transportation of Iron Ore using Automated Tipping Trucks. The Appellant executed a composite activity involving transportation from mines dump yard to Railway Siding up to a lead of 1/2 km, including incidental loading and unloading in automated tipping trucks with hydraulic jack facilities. The Department demanded Service Tax amounting to ?18,50,827 on these activities, treating them as "Shifting" instead of transportation. The show cause notice indicated separate contracts for local transportation and wagon loading activities, with the Appellant having already paid service tax on the latter but not on the former. The Appellant contended that the contracts for wagon loading and local transportation were distinct, and the entire consideration should not be taxed under Cargo Handling Services as per a Board Circular. The Appellant argued against being categorized as a Cargo Handling Agent and cited relevant tribunal and Supreme Court judgments supporting their position. The Respondent supported the impugned Order, asserting that the composite nature of the contract warranted taxation under Cargo Handling Services.

Upon review, the Tribunal found that the demand was solely on the local transportation/shifting charges inclusive of loading and unloading activities. The contract primarily involved transportation of goods with incidental loading and unloading, not falling under Cargo Handling Services. The Tribunal disagreed with the reliance on the Circular by the Commissioner (Appeal) and noted that the Appellant was not a Cargo Handling Agent. Consequently, the impugned Order was set aside, and the Appeal was allowed with consequential relief to the Appellant. The decision was pronounced on October 22, 2019, by the Tribunal.