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TMI Blog2014 (3) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhadoria , Partner of the Applicant No.1 and M/ s.Usha Martin Ltd., Applicant No.3. 2. At the outset the Ld.Sr.Advocate Dr.Samir Chakraborty appearing on behalf of the Applicant has submitted that the said Applicant had received various works contract from M/ s.Usha Martin Ltd .( UML) for unloading of ores at the Railway siding from the Railway rakes for unloading, loading, track cleaning and shifting/transportation of the said materials from Tata Goods Shed(TGS)/Goods Dispatch Yard(GDY) at Tatanagar to the stacking yard in M/ s.UML's works. In case of few contracts the order is for hiring of pocklin to their Railway siding for hipping of iron ores and handling of the materials in M/ s.UML's works. It is the contention that the rate quote ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 34 ( Tri.Kolkata ) d) Om Shiv Transport vs. CCE, Allahabad - 2013 (31) S.T.R. 152 (Tri. Del.) e) I.A. Dhas vs. CCE, Raipur - 2012 (28) S.T.R. 630 (Tri.-Del.) 3. The Ld.A.R . for the Revenue reiterated the findings of the adjudicating Commissioner. 4. Heard both sides and perused the record. 5. We find that the Applicant in this case has got various work orders from M/ s.UML for unloading, loading, track cleaning and transportation of iron ore from Railway siding to the premises of M/ s.UML and stacking thereof at M/ s.UML . In other cases the contract was for hiring of the equipments to M/ s.UML's Railway siding for hoping of iron fines, cleaning of rakes, handling of materials in the works of M/ s.UML etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an integral part of the service provided. It may be clarified whether in such cases service provided is to be classified, under GTA service. Clarification: Cargo handling service [Section 65(105 )( zr )] means loading, unloading, packing or unpacking of cargo and includes the service of packing together with transportation of cargo with or without loading, unloading and unpacking. Transportation is not the essential character of cargo handling service but only incidental to the cargo handling service. Where service is provided by a person who is registered as GTA service provides and issues consignment note for transportation of goods by road in a goods carriage and the amount charged for the service provided is inclusive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the transporter will no longer be transportation but cargo handling services. 9. In case of Om Shiv Transport cited (supra) the assessee are in the business of transportation of coal in tipping trucks from coal stock-yard of Northern Coalfields Ltd. (NCL) including loading of coal into tipping trucks and Railway wagons by employing their own pay-loader. Tribunal in this case drew a fine distinction between GTA Services and Cargo Handling Services as under:- "5. We are not inclined to set out in detail, the contentions on behalf of the Appellants on this aspect, which are contested by Ld.D.R . since issue in so far as this Tribunal is concerned it settled by the decision of the Orrisa High Court in Coal Carrier vs. CCE - 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal has been upheld by Hon'ble High Court of Jharkhand. 11. We find from the case laws mentioned (supra) that in case of composite services of shifting/transportation of materials where loading and unloading is ancillary to the main activity of transportation are held to be classifiable under GTA Services. Further the various activities undertaken by the contractor inside the works were held to be non-taxable. We also find that in this case M/s. Usha Martin Ltd. has already discharged the tax on GTA Services under the Reverse Charge Mechanism. In these circumstances we are prima facie of the view that all the Applicants have made out prima facie case for waiver of pre-deposit of entire amount of dues adjudged against each of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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