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TMI Blog2012 (7) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... egal interpretation of the definition of the various services and being a complicated issue, the assessee cannot be saddled with any suppression or misstatement or mala fide intention so as to invoke longer period of limitation - direction to re-quantify the demand of the service tax only on consideration received for movement for loading of dolomite for further movement within normal period of limitation - as no mala fide on the part of the appellant, imposition of penalty upon them is not justified - partly allowed in favour of assessee. - ST/334/2007-CUS - ST/A/82/2012-CUS - Dated:- 23-1-2012 - MRS. ARCHANA WADHWA, MATHEW JOHN, JJ. ORDER Mrs. Archana Wadhwa, Judicial Member - Vide his impugned order, the Commissioner has confirmed the service tax of Rs. 56,36,761/- against the appellant for the period from 16.8.02 to 30.5.04 on the finding that they have provided services under the category of "cargo handling service" to M/s. Steel Authority of India, Bhilai Steel Plant. In addition a penalty of identical amount stands imposed under section 78 of Finance Act, 1994 along with imposition of penalty under sections 75A, 76 and 77 of Finance Act, 1994. 2. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transporting the same to waste dump located up to distance up to 0.952 m. (b) Obtaining of SP Grade 0-60 mm/6-60 mm/10-60 mm size fractions after crushing screening. Loading by shovel/pay loaders into contractors own tippers by above stack and transporting to Dadhapara Railway Siding at a distance of 6.422 km. (c) Obtaining of SP Grade 8-20 mm/'10-25 size fractions after crushing screening. Loading by shovel/pay loaders into contractors own tippers by above stack and transporting to Dadhapara Railway Siding at a distance of 6.422 km. (2) Loading of Dolomite of various sizes i.e. (a) 8-20/10-25 mm sizes, (b) 0-60 mm/6-60 mm size, fractions into Railway Siding Wagons at Dadhapara Siding by mechanical means." 6. The tender also requires the appellant to have following technical requirements:- (i) Rocker Breaker (ii) Hydraulic Excavator (iii) Pay Loader (iv) Tippers (v) Crushing and Screening Plant (vi) Skilled, Unskilled and Supervisory Manpower. 7. It is seen that mining and excavating of dolomite is done by the employees of the SAIL, who transport the dolomite boulders which is known as "Run of Mine" (ROM) from the mine to stockpile which is about 1-2 km fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght terminal or any other freight terminal, for all modes of transport and cargo handling services incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods." 13. The Commissioner, while examining the issue before him, has observed that the activities undertaken under the contract includes loading, unloading, packing or unpacking of cargo, which stands specifically covered under the definition without stipulating any condition about the manner in which the cargo is subsequently handled. Inasmuch as the appellant is engaged for executing the work of loading of 0.-6 mm dolomite to waste dump and rest of the dolomite to Dadhapara Railway Siding and for loading it to Railway wagons, the definition of cargo handling service stands satisfied. He has detailed the work executed by the appellant as under:- (i) Loading of dolomite (0-500 mm) size from stockpile by means of mechanical excavator/loader into tripper. (ii) Unloading the above into hopper over grizzly feeder of crushing unit, which is situated at a distance of 1 km from the Mechanical Excavator. (iii) Loading of 0-6 mm/0-10 mm Waste/Reject material by shovel/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d English Dictionary for Advanced Learners Cargo Cargo of a ship or place is the goods that it is carrying The Compact edition of the Oxford English dictionary Cargo 1. freight or lading of a ship, a ship-load 16. As can be seen from the above word 'cargo' relates normally to goods carried by ship but definition could be extended to carriage of goods by other forms of transporting the goods i.e. rail, air or road. The Board vide its Circular F.No. B11/l/2002-TRU dt. 1.8.2002 has clarified that services liable to tax under the said category are services provided by cargo handling agency who undertakes the activities of packing, unpacking, loading and unloading of goods to be transported by any means of transport, namely, truck, rail, ship or aircraft. 17. The appellants have contended that on completion of breaking oversize dolomites, movement of the same is up to maximum 1 km within mine and that the activities of loading and unloading are within 1-2 km from the end-point of one activity to initial point of another activity. The entire loading and transportation is within mines itself and there is no lorry receipt, goods receipt etc. issued for su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one place to another within the factory will not fall under the cargo handling service, which requires the service provided to be integrally or inseparably connected with handling of cargo or attributable thereto without being a mere activity of transportation of such cargo. The Tribunal accordingly observed that it can be safely concluded that loading and unloading, packing or unpacking of the cargo and handling of cargo for freight in special container or non-containerized freight and service provided by container freight terminal or other freight terminal for all the modes of transport only are subject-matter of taxation under the class of cargo handling service. To the similar effect are the other decisions of the Tribunal that movement of the products within mining area is not covered under the cargo handling service. 19. When we examine the activity undertaken by the appellant as reflected in the agreement, in the light of the above decision of the Tribunal, we note that prime work for which the contract was awarded to the appellant for crushing, screening and sieving of the dolomite in the mining area. The movement of the end-product from site of one activity to the site o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, the activity involved in that case was transportation of coal from wagon to thermal power station by conveyor belt and not by means of transportation. It was in the circumstances of the case, Hon'ble High Court held that the activity is not covered under the cargo handling service. Contrary to the above, we find in the present case that a part of the service being provided by the appellant includes loading of dolomites in wagons for further transportation of the same to Bhilai. As such, it is not the case of unloading from where transportation has already been completed but a case of loading, for further transportation of the same. As such, that part of the activity which involved loading of dolomite in the railway wagons for further transportation of the goods, to Bhilai Steel plant would get covered under the definition of the cargo handling service. It is seen from the work order dt. 3.12.01 placed by SAIL on the appellant the consideration for the said activity stands separately specified as amounting to Rs. 1,26,32,183.49. The said consideration alone would be liable to service tax under the category of "cargo handling service". 21. The appellant has stressed on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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