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TMI Blog2011 (9) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... from power plant to cement plant within the factory premises of SCW and also in shifting of the final product viz. cement from the factory to a proper storage place within the factory premises. The Appellants state its activities as under:- (a) Loading of cement bags into trucks and Railway Wagon - That M/s Shriram Cement Works has a mechanized plant for loading of cement bags at the company site. They required manpower for managing various points in the mechanized process. All the activities are done mechanically by machineries and conveyor belt owned by the cement manufacturer i.e. M/s SCW. The loading job is fully automated and the man power supplied by the appellant is related to only supplementing the mechanized process of loading of cement bags. The labourers provided by the appellant stand at different place in the mechanized process. The loading job are carried out through conveyor system which takes these bags to the exist point that goes right into/or wagon (sic. truck or wagon) At the exist point, the labourers simply give a helping push to the bags whenever necessary so that it falls in place and bags are properly stacked. Since labour supplied by the appellant are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of title is raised for any party. The appellant has carried out the entire job within the factory premises and only a meagre amount not exceeding ₹ 10,000/- was charged for transporting of coal from power plant to Jagpura which is outside the factory premises. The coal was shifted using loader machine and dumper and such (sic as such) the appellant has performed the work of internal transportation only which was specifically excluded under the head of cargo handling services. Further under the agreement no relationship of bailor of bailee exists between the parties and being the goods are not transported outside the factory premises no documents of title is raised for any party. In this case also being the goods were shifted within the factory premises from Power Plant to cement plant and such goods are not meant for transportation outside the factory premises and, therefore, such goods are not comes in the definition of Cargo and, therefore, the services provided by the appellant are not covered under the CHS. Under this head, appellant has received the total payment of ₹ 28,52,917/- during the disputed period. The total payment received against each category of ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (Mag.) So the Appellants argue that there cannot be any dispute that the activity of shifting of coal from power plant to cement unit or shifting of final product viz. cement within the factory premises cannot fall within the definition of Cargo Handling Services . 4. In the matter of loading of cement bags into trucks and railway wagon using mechanical appliances the Appellant relies on the decision of Hon'ble Rajasthan High Court in the matter of S.B. Construction Co. v. Union of India [2007] 6 STT 385. He relies on paragraphs 7, 8, 9 10 of the order which are re-produced below :- 7. We have heard learned Counsel for the parties and perused the pleadings. In order to appreciate the controversy involved it will be necessary to look into the actual nature of job assigned to the petitioner Firm, which has been placed an record as Annexure-3. It clearly appears that the 4th respondent gave contract to the petitioner Firm for unloading the coal from railway wagon to boiler bunkers of the Thermal Power Station. The contract has been awarded for unloading of coal through WT system, stacking/reclaiming of coal to S/R system and feeding of coal to boiler bunkers through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling system to be fed in the boiler bunkers through conveyor system. It is evident that handling of the coal is done through wagon tippling system or conveyor system, they are mechanical devices and no motor vehicle is involved in the said handling. The clarification made by the CBEC also supports the petitioner's contention. It clearly appears that the Service tax has been levied under the 'Cargo Handling', on such services which undertakes the activities of packing, unpacking, loading, unloading of goods to be transported by any means of transportation namely truck, rail, ship or aircraft. In the instant case the service provided by the petitioner Firm under the contract is distinct i.e. transporting coal from wagons to Thermal Power Station by conveyor belt and not by any means of transportation. Thus, we are of the view that the service rendered by the petitioner under the subject contract does not fall under the ambit of Cargo Handling Services and as such it is not liable to pay the service tax. 5. The Appellants point out that in the case of S.B. Construction Co. (supra), the cargo which came by railway wagon was being unloaded using a mechanised system to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g process. The loading jobs are carried out through conveyor system which takes these bags to the exit point that goes right into the truck and loading into truck from exit point, the labours simply give a helping push to the bag whenever necessary, so that it fails in place and bags are properly staked. In a very few instances where the loader machines or conveyor belts are not reaching to the trucks, the work is carried out manually. We further certify that M/s Gayatri Construction is neither the owner of the machine nor they have taken it on rent. He is completely outsider to the mechanized process of cargo handling activity. The firm has no control on the mechanised process, in fact M/s Gayatri Construction Co. deploy only the manpower under the contract given for handling at plant site. Under the contract, M/s Gayatri Construction Co. is also doing the job for internal shifting of goods within the factory premises. These goods are not meant for transportation and were just shifted from one place to another within the factory premises. M/s Gayatri Construction is also doing the job of shifting the cement bags from plant site to Railway platform but in such cases it is not ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no need for much discussion on the issue. In the case of handling of goods using conveyor system also decision of Hon'ble Punjab Haryana High Court in the said decision has held that such activity will not fall within the definition of Cargo Handling Service . There is no information that such orders has been challenged by the Revenue or stayed by the Apex Court. The facts of the case at hand is different for that in Gajanand Agarwal's case (supra) where the whole payment was based on per metric tonne of cargo loaded in railway wagons. 10. In this case an issue arises at what stage the goods handled by the Appellants were in the nature of cargo . M/s Shriram Cement Works state that in the case of loading from platform to wagon they were paying service tax from the beginning. Therefore, essentially the present demand is for services used for transporting goods within the factory and also for manpower supplied for manual assistance at various points of loading system using conveyer system though there may be a small part of the service which may be in the nature of manual loading of cargo into railway wagons or trucks which may come within the meaning of Carg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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