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TMI Blog2013 (10) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... service - Whether activities of the appellants are classifiable under Business Auxiliary Services with effect from 10.09.2004 - Held that:- The activities undertaken include, sorting, grading pre-screening, screening and crushing of limestone of various sizes. These activities are more in the nature of processing of raw and crude limestone to Low silica limestone gitties of desired sizes. We are therefore of the view that these activities more appropriately can be termed as processing activities and not production of goods. Since processing has been added in the defined of Business Auxiliary Services with effect from 16.06.2005, we hold these activities are classifiable as Business Auxiliary Services with effect from 16.06.2005 only - Decided in favour of assessee. - ST/386/2009 - FINAL ORDER NO.57534/2013 - Dated:- 21-8-2013 - G Raghuram And Sahab Singh, JJ. For the Appellant : Shri B L Narsimhan, Adv. For the Respondent : Shri Pramod Kumar, Jt. CDR PER : Sahab Singh This appeal has been filed by M/s Ujjawal Parivahan Sahakari Samiti Ltd (hereinafter referred to as appellants) against the Order-in-Original No.9/2008/ST/JPR-II/Commissioner/dated 30.12.2008 passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants within the mining area and un-loading of such limestone in the crushing plant and such activity can not be categorised as Cargo Handling Services. He further submits that impugned services were rendered to company which owns mines and is engaged in selling of minerals. Mining is not a single activity but comprises of excavation, overburden removal and extraction of minerals and other activities and the excavation of limestone is also mining work. He submits that substance of the transaction prevails over the forms and as such the activity undertaken in the present case is the activity of mining of limestone and transportation loading and un-loading of the same is just in incidental in whole process. He also relied on the Section 65A of the Finance Act under which the classification of taxable services under various sub-clause of clause 105 of Section 65 is to be done as per essential character of service and in the present case the transportation/loading and un-loading is not the essential character of the service. 4. As regards the classification of service under Business Auxiliary Service with effect from 10.09.2004 he submits that Commissioner has classified the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Auxiliary Service as defined under Section 65(19) of the Finance Act from 10.09.2004. 7. We find the Cargo Handling Service has been defined under Section 65(23) of the act as under:- "Loading, Unloading, Packing or Unpacking of cargo and includes cargo handling service provided for freight in special containers or for non- containerised freight services provided by a container freight terminal or any incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of gods." We also not that activities undertaken by the appellants have been enumerated in Contracts/Agreements as under:- " A. Deployment of hydraulic excavators (minimum 0.90M. range capacity), Dumpers (minimum 10MT capacity Wagon drills with matching Compressors, From-end loaders, Bull dozers, Road Graders, Water tankers, etc. And other allied machineries to be utilised for Excavation of low silica (less than 1.5% silica) steel grade limestone (i.e. SMS grade limestone) including associated Clay/sand/Waste/ Murrum etc., in the earmarked area a per Plans Section enclosed, and upto the depth as may be direction by the Corporation (which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area so as to keep the level of the back filled rejects dump area up to the original ground level. D. Transportation Stacking of limestone by products specified at clause-1(i) (B) as and when required, specified from their respective hoppers to the places earmarked by the Corporation as per plan attached. I. Payment for total works described as above shall be made on the basis of produced quantity of the main limestone products i.e. (+) 40 mm to (-) 80mm and (+) 30 mm to (-) 50 mm or any other size specified by the Corporation. No separate payment for the work of excavation, transportation, stacking, dumping, refilling, segregation of fines into various by products reject product shall be made by the Corporation to the Co-operative society. The rate offered includes the incidence of these costs."From the description of work we note that activities undertaken by the appellants are A (i) Deployment of machinery hydraulic excavators Dumpers Wagon drills with matching Compressors, Front-end loader, Bull dozers, Road Graders, Water tankers and other allied machineries. (ii) Excavation of low silica steel grade limestone includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause(a) shall be classified as if it consisted of a service which gives them their essential character; c) When a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under sub-clause which occurs first among the sub-clauses which equally merit consideration". 11. We have seen above the appellants are engaged in various activities. Whenever a composite service consisting of different services which cannot be classified in clause 2(a) of Section 65A, services are to be classified as service which gives them essential character of service as per clause 2(b) of Section 65A. We note that Cargo Handling Services does not give essential character of activities of the appellants. We therefore hold that activities of the appellants prior to 10.09.2004 do not fall under Cargo Handling Service as defined under Section 65 (23) of the Act as loading/unloading are only incidental and not the main activity of the appellants. 12. Now coming to second issue whether activities of the appellants are classifiable under Business Auxiliary Services with effect from 10.09.2004 we find that Business Auxiliary Services was defined under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a service incidental or auxiliary to any activity specified in sub-clauses (i) to (vi), such as billing issue or collection or recovery of cheques, payments, maintenance of accounts and remittance, inventory management, evaluation or development of prospective customer or vendor, public relation services, management or supervision, and includes services as a commission agent, but does not include any information technology service and any activity that amounts to "manufacture" within the meaning of clause (f) of Section 2 of the Central Excise Act, 1944 (1 of 1944). Explanation.- For the removal of doubts, it is hereby declared that for the purposes of this clause, - (a) "commission agent" means any person who acts on behalf of another person and causes sale or purchase of goods, or provision or receipt of services, for a consideration, and includes any person who, while acting on behalf of another person- (i) Deals with goods or services or documents of title to such goods or services; or (ii) Collects payment of sale price of such goods or services; or (iii) Guarantees for collection or payment for such goods or services; or (iv) U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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