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TMI Blog2012 (5) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Sainik Mining & Allied Services Ltd. (2007 (11) TMI 90 (Tri) ) and there is no instruction from Revenue whether that order of Tribunal has been reversed or stayed by any higher court. - Decided in favor of assessee. - ST Appeal Nos. 352 to 363 OF 2008 - ST/A/143-154 of 2012-CUS - Dated:- 23-2-2012 - D.N. Panda, Rakesh Kumar, JJ. S.N. Kapoor for the Appellant. B.L. Soni for the Respondent. ORDER D.N. Panda, Judicial Member Learned Counsel mentions that during the time of passing stay order factual matrix was considered by the Tribunal and it was viewed that cases of the present appellants shall be covered by the decision of Tribunal in the case of Sainik Mining Allied Services Ltd. v. CCE, C T [20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices Ltd. ( supra). 4. Heard both sides and perused the record. , 5. Since the Revenue's position is as above we have re-examined the factual aspect in all these appeals. We took the sample case of Anupam Coal Carriers (P.) Ltd. in ST/352/2008 on 12-4-2007. While issuing show cause notice in that case, copy of loading agreement dated 18.4.2005, entered into between the parties was examined by the investigating authority. The said authority in Paras 3 and 4 of the notice clearly described the nature of activity as under:- "On scrutiny of documents tendered by M/s. ACCPL, it appears that M/s. ACCPL has entered into an agreement with M/s. SECL on 18-4-2005, for executing the work of loading of coal from various quarries, faces, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from any other site/stock and such order/ advice shall be binding upon the Ex-Servicemen Transport Company. ( vii ) The Ex-Servicemen Transport Company shall make their own arrangements at their own cost for all materials, tools, staff and stores required for the execution of work to the satisfaction of the Company. ( viii ) The Ex-Servicemen Transport Company must load a the minimum daily and monthly quantity of coal offered to them by the Company's concerned colliery, which would be intimated by the colliery or by the Chief General Manager. ( ix ) The Ex-Servicemen Transport Company must load the minimum guaranteed quantity. ( x ) The Ex-Servicemen Transport Company shall use all payloaders exclusively for loading of coal fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws applicable to Coal Industry as the case may be. 6. Para 4 of show cause notice shows that there was a scrutiny done by the authority to the terms of agreement dated 18-4-2005. This clearly indicates that the activity of loading coal was from various queries, faces, surfaces and stock yards of South Eastern Coal Yards Ltd., deploying payloaders. The obligation of the appellant and the coal field was examined with the liability of each other ( i ) shows that the contents of Para 4 of show cause notice was one of the obligations. In order to discharge such obligation use of loaders and manpower was the obligation. It was agreed between the parties by clause ( viii ) under Para 4 of show cause notice that agreed quantum of loading was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned the contents of the work order dated 29-4-2003 in Coal Carriers case ( supra ) and observed that the factual aspect in that case called for decision was whether Cargo Handing Service provided. The decision of Sainik Mining Allied Services Ltd. ( supra ) was not at all cited before the Hon'ble High Court. Since the appellants in that case did not plead the benefit of decision of Sainik Mining Allied Service Ltd . ( supra ) case, on the factual matrix before the Hon'ble Court, the appeal was decided against the appellants. 9. In the present batch of appeals the appellants have specifically pleaded that they are governed by the decision of Sainik Mining Allied Services Ltd. ( supra ). Once the decision in that case has rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover pre-transportation activity like unloading and on this basis the Hon'ble High Court in that case held that loading of coal on wagon at the railway siding would be covered by the Cargo Handling Service. Thus for clarifying an activity as Cargo Handing Service it must be shown that it is a service adjunct to the actual transportation of goods i.e. services just before transportation of goods and post-transportation services when cargo has been discharged. The movement of goods within a factory from one point to another or within a mine from one place to another would not be covered by Cargo Handling Service unless it is shown that such activity is adjunct to the actual transportation. In this case neither in the show cause notice nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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