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TMI Blog2013 (9) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Circular dated 1.8.2002 (earlier referred to in this judgement) also supports the assessee’s claim to immunity to service tax under the category of cargo handling agency service. The Rajasthan High Court proceeded to hold that in the case before it the service provided by the appellant under the contract is a distinct activity of transporting coal from wagons to the site of Thermal Power Station by conveyor belt and not by means of any transportation and the service rendered is not cargo handling service, liable to service tax. Further, Full bench of the Hon’ble Tribunal in Madura Coats Vs. CCE [1995 (10) TMI 128 - CEGAT, MADRAS] clarified that where a conflict of decisions among High Courts does not relate to interpretation of statutory provisions or a notification (and not vires thereof) the decision of the jurisdictional High Court which has jurisdiction in respect of the authority which adjudicated the matter initially and of the assessee and has taken a particular view of interpretation or proposition of law, must be followed in cases falling within that jurisdiction - Decision of Orissa High Court in Coal Carriers Vs. CCE - [2011 (2) TMI 1140 - ORISSA HIGH COURT] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of works for smooth operation of coal handling system including clearing under coal handling operation circle for meeting coal consumption requirements of KTPS units stage (I) to (IV) by unloading of coal wagons at WT No. 1 to 5 and others specified operations in relation thereto. 3. Revenue issued a Show Cause Notice dated 10.11.2005 alleging, on the basis of information gathered from KTPS/Kota that the assessee had provided coal handling service to KTPS involving service tax liability of Rs.7,55,357/- in respect of receipts from KTPS, during 22.10.2003 to 14.9.2004. The SCN further asserted that a clarification was issued in the Regional Advisory Committee meeting held on 6.9.2004, that the assessee and others similarly situated who were providing loading, unloading, packing, unpacking services are liable to service tax with effect from 16.8.2002, if such services are provided by cargo handling agency; an assessee failed to remit service tax in the specified amount in respect of the period 8.8.2003 to 7.8.2004 had failed to declare the facts to the department; and had wilfully suppressed the value of the taxable service with intent to evade service tax and thereby contravene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the relevant provision [i.e Section 65(23) which defines cargo handling service], to mean handling of Cargo (coal) including unloading from wagons and loading through the mechanical process of wagon tipplers for loading on a conveyor belt of a Thermal Power plant for feeding such coal into its boiler unit does not constitute cargo handling service, the decision of the Orissa High Court in Coal Carriers is clearly to the contrary. 9. In Coal Carriers, the Orissa High Court clearly ruled that cargo means the load or freight of a vessel, train, truck, aeroplane or other carrier (according to Black s Law Dictionary); that goods which are meant for transportation from one place to another by any mode of transport is known as cargo; that meaning of expression loading means the act of putting a load on a car, vessel etc.; that unloading means disburdening or removing from; that cargo handling service is an adjunct service to the actual transportation of goods; and consequently pre-transportation activities like packing/loading and post-transportation activities like unloading/unpacking have been brought within the service tax net, a cargo handling service . 10. Relying on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jasthan High Court. There is no direct decision delineating the interpretation of Section 65(23) of the Act by the Delhi High Court, that is brought to our notice. 15. A full Bench of this Tribunal in Madura Coats Vs. CCE 1996 (82) ELT 512 clarified that where a conflict of decisions among High Courts does not relate to interpretation of statutory provisions or a notification (and not vires thereof) the decision of the jurisdictional High Court which has jurisdiction in respect of the authority which adjudicated the matter initially and of the assessee and has taken a particular view of interpretation or proposition of law, must be followed in cases falling within that jurisdiction. Madura Coats was reiterated by a Larger Bench of this Tribunal (5 Hon ble Members) in Collector of Central Excise Vs. Kashmir Conductors - 1997 (96) ELT 257. The larger bench referred to the Madura Coats decision and reiterated the principle that pronouncements as to the interpretation of a statutory provision or notification, by the High Court having jurisdiction inter alia over the assessee would be binding. 16. We are bound by the decision of the full Bench in Madura Coats and the Larger Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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