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TMI Blog2011 (11) TMI 358X X X X Extracts X X X X X X X X Extracts X X X X ..... ther, in view of, no positive act, on the part of the appellant penalties are not imposable upon them. Therefore, we set aside the demand for the larger period and the penalties imposed. X X X X Extracts X X X X X X X X Extracts X X X X ..... at one composite service of transportation of coal from one location in the mine to another within the mine. In work orders, for the purposes of administrative convenience, separate rates are agreed for loading and separate rates are agreed for transportation of coal. 4.3 The Appellants placed reliance on the definition of 'Cargo' in Collins Internet-linked Dictionary of Business and Webster's Dictionary. The contention is that cargo is the same as freight and that the term, 'cargo' in commercial usage has a peculiar usage to the extent that only the goods in transit on a vehicle, ship or aircraft be 'cargo' and coal mined from earth would earth is not 'cargo'. To qualify as cargo handling, the handling must be of cargo. While all cargo may be goods, all goods need not necessarily be cargo. In this regard, they have placed reliance on para 14 of the Budget Circular No. B11/1/02-TRU dated 01.08.2002, wherein it was clarified that empty containers cannot be treated as cargo. In support of their contention, they also placed reliance on the amendment to definition of 'Cargo Handling Service'; vide Finance Act, 2008 with effect from 16.05.2008. 4.4 The contention is that the definitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) has been rejected by the Hon'ble Jharkhand High Court, vide Order reported in CCE v. Modi Construction Co. [2011] 33 STT 161/13 taxmann.com 202. They have placed reliance on the following decisions:- (i) Dalveer Singh v. CCE [2008] 12 STT 226 (New Delhi - Cestat) (ii) CCE v. Laxmi Trading Co. [Final order No. ST/41/2008, dated 18-2-2008] (iii) CCE&C v. B.K. Thakkar [Final order No. A/1877/Kol./2007, dated 24-10-2007] (iv) S.B. Construction Co. v. Union of India [2007] 6 STT 385 (Raj.) 4.8 The contention is that the Appellants are merely acting as an agency on behalf of Director General of Rehabilitation(DGR) in case of Service Tax liability, if any, the same is recoverable only from DGR, the main contractor and not the Appellants. 4.9 The contention is that the cum-tax benefit must be extended to the Appellants. 4.10 The contention is that since the issue involves is of interpretation and there is no suppression of fact, extended period is not invocable in this case on the part of the Appellants, therefore penalty is not imposable against the Appellants. 5.1 As regards the contention of the Appellant that there is a composite contract with WCL both for loading/unloadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Modi Construction Co. (supra) is also distinguishable. The contract in the said case was for transportation only and loading and unloading were incidental to it unlike the present case where the work order is in two parts - one for loading and unloading and the other for transportation and having separate rates for each. In the case of Jharkhand High Court, the issue was shifting of goods within a factory premises. Therefore, the decision is distinguishable. 5.6 As regards the time-limit, learned Jt. CDR has drawn our attention to para 19 of the impugned Adjudication Order, wherein the justification for invoking the extended time-limit has been clearly brought out. 6.1 We have considered the submissions and perused the record. 6.2 Section 65(105)(zr) of the Act declared cargo handling service to be "taxable service" w.e.f. 16-8-2002. For better appreciation the relevant provisions are extracted hereunder : (a) "65(105) "taxable service" means any service provided or to be provided, - i. ** ** ** (b) (zr) to any person, by a cargo handling agency in relation to cargo handling services;" (c) In view of declaration of law as above, meaning of the term "cargo handling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cargo since transport service independent of cargo handling is an exception under the scheme of levy by Section 65(23) of the Act. Thus it can be said that loading, unloading, packing or unpacking of cargo and handling of cargo for freight in special containers or non-containerized freight and service provided by container freight terminal or other freight terminal for all modes of transport are subject-matter of taxation under the class "cargo handling service". That apart, any activity incidental to freight of cargo is also liable to be taxed under such class. Mode of transport is irrelevant for incidence of levy once the service provided meets the test of handling of cargo in the manner envisaged by law. It is also not necessary that the cargo should only be meant for transport either by vessel in ships or aircrafts. 6.3 Undisputedly, the loading of coal is done on tipper by hiring pay-loader and the tippers and the coal is transported from one place within the mine area to another place, and thereafter the coal is unloaded. The Appellants have contended that there is a composite contract with WCL both for loading/unloading and transportation and that the contract is basicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, the coal was transferred through tippers i.e. trucks and no conveyor system was used. Therefore, the decision is clearly distinguishable. As regards the decision of Hon'ble High Court of Jharkhand in the case of Modi Construction Co. (supra), there is a corresponding decision of the Tribunal in the case of Modi Construction Co. (supra) on the factual position. The said decision was based entirely on the case of Sainik Mining & Allied Services (supra), wherein the contract was held to be one for transportation only and in the case of Modi Construction Co. (supra) passed by the Tribunal also, the contract was for transportation only, and loading and unloading were incidental to it, which is not the case, here. Therefore, the Hon'ble High Court's decision in the case of Modi Construction Co. (supra) is distinguishable. 6.6 Board vide para 5 of circular 232/2/2006-C.X-4 dt 12/11/2007 has also clarified that handling and transportation of coal/mineral from pithead to a specified location within the mine/factory or for transportation outside the mine are post-mining activities and are chargeable to service tax under the relevant taxable services i.e. 'Cargo Handling Service ..... 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