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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 ..... rious contracts that rate quoted is for composite services and on per M.T. basis. As per note appended to the contract order the above rates are based on considering the day time traffic restriction. Further in order to cope up with the increased movement of additional quantity of raw material through Railway siding, adequate number of vehicles (dumpers/trucks) is to be deployed on regular basis. It is to be ensured that all the lorries/dumpers used for carrying out the job are fully equipped with all valid genuine documents such as tax token; owner-book, insurance policy, driving licence etc. so that there will be no problem/non-compliance en route till the delivery of the materials at the stacking yard. Any liability arising on lapse on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Consultant For the Respondent : Shri B Saha , Special Counsel PER : I P Lal These Applications are filed by M/ s.Bhadoria Transport Company, Applicant No.1 for waiver of pre-deposit of Service Tax amount of Rs.2,16,17,110/- along with penalties imposed on the said company, penalty imposed on Applicant No.2 Shri Dharamvir 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/transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GTA Service. He relies on the following decisions, amongst others to buttress his argument:- a) R.K.Transport Co. vs. CCE, Raipur - 2012 (27) S.T.R. 496 ( Tri.Del .) b) CCE, Ranchi vs. Modi Construction Co. - 2011 (23) S.T.R. 6 ( Jhar .) c) Modi Construction Co. vs. CCE, Ranchi - 2008 (12) S.T.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loading are only ancillary to the activity of transportation. 6. We find that in the Board's Circular dated 06.08.2008, it has been clarified as under : - "4. Issue 2: GTA providing service in relation to transportation of goods by road in a goods carriage also undertakes packing 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 servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng incidental to freight. The definition does not specifically include transportation. It specifically excludes 'mere transportation' so the definition cannot be interpreted to me that if a transporter who transports goods does loading and unloading also, the service rendered by 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:- " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited (supra) held that service of shifting/transportation of raw materials, waste materials and finished products from one place to another inside the plant within an area of 2 K.M. does not call for taxation under the head 'Cargo Handling Service'. This decision of 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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