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TMI Blog2012 (3) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice was brought under tax net by Finance Act, 2007 - Held that :- In the activities carried out by the appellants there appears to be a small component of loading and unloading of cargo. The contract with BALCO has an integrated rate of ₹ 485 per ton for mining, transportation, loading and unloading - on the entire component of transportation the receiver of the service has already paid service tax under the category of services of Transportation of Goods by Road - The cargo handling activity is incidental to transportation - It can be seen from fixed base transportation charge and there is no attempt to show that this is an unreasonable rate for transportation, jacked up on account of value of cargo handling included in it - Appeal was allowed in the favour of Assessee - 431 of 2008 - ST/A/84/2012-CUS - Dated:- 25-1-2012 - Archana Wadhwa, Mathew John, JJ. For Appellant: Shri B L Narasimhan, Adv. For Respondent: Shri Sunil Kumar, SDR Per: Mathew John: The Appellants are engaged in activities of mining for excavation of bauxite ore, loading of the same into trucks at the stock yards, transportation of the same by road and unloading of the same at spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax is legally tenable as neither GTA nor Business Auxiliary Service was in force. A service which is covered under mining service from 01-06-2007 cannot be considered to be covered by any other service for the earlier period. At any rate the activity of the appellants cannot be considered as cargo handling service. If any part of the activity is considered to be cargo handling service for that reason service tax cannot be levied on the entire receipts under the contract. 6. The Counsel for the appellant argues that handling of cargo within a factory or mines cannot be considered as handling of cargo. He relies on the following decisions, among others, to buttress his argument: (i) S.B. Construction Co Vs. UOI-2006 (4) STR 545 (Raj) (ii) Modi Construction Co. Vs. CCE - 2008 (12) STR 34 (Tri) ; (iii) Sainik Mining Allied services Ltd. Vs. CCE - 2008 (9) STR 531 (Tri) (iv) CCE Vs. Vinshree Coal Carriers Pvt. Ltd - 2008 (10) STR 473 ; 7. The Appellants have also the argument that the demands are time barred. He submitted that the scope of cargo handling service was under confusion as can be seen from Board's Circular F. No. 232/2/2006-CX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of site formation and clearance, excavation and earth-moving and demolition service is an inclusive definition and activities specifically mentioned are indicative and not exhaustive. Prior to construction of buildings, factory or any civil structure, activity of mining or clearance, excavation and earth moving or levelling are normally undertaken for a consideration to make the land suitable for such activities. Such services include blasting and rock removal work, clearance of underground, drilling and boring, overburden removal and other development and preparation services of mineral properties and site, and other similar excavating and earth-moving services. Hence, these activities are taxable under the category of site formation and clearance, excavation and earth-moving and demolition service w.e.f. 16-6-2005. 4 Coal cutting or mineral extraction and lifting them up to the pithead: These activities are essential integral processes and are part of mining operations. As stated earlier, mining activity has been made taxable by legislation under the Finance Act, 2007 (w.e.f. 1-6-2007). Prior to this date, such activities, being part of mining operations itself ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h composite contract and the receiver of the service has already paid service tax on the services in the nature of Goods Transportation by Road. But the Appellants are not paying tax on cargo handling service based on the argument that the contract cannot be vivisected. 11. The Ld. SDR points out clause 2.1 of the agreement with HINDALCO according to which the payment for mining is ₹ 192 per ton and ₹ 588 per ton for transportation. So he argues that the argument that mining is the predominant activity is not correct at all. 12. The Ld. SDR also relies on the decision of the Tribunal in the case of Gajanand Agarwal Vs. CCE - 2009 (13) STR 138 to support his argument. 13. The Ld SDR also points out that despite repeated requests from the department the appellants did not disclose the details of the contract and they did not file returns. He says there is deliberate attempt on the part of the appellants and their principal to classify the service under that of Goods Transport Agency with intention to avail the abatement of 75% and hence extended period can be justifiably invoked in this case. 14. We have considered arguments on both sides and perused the relev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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