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TMI Blog2014 (6) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... ineral ores, though under one instrument. The coal/mineral ore loaded by the appellant at the coal/mineral ore heaps and thereafter unloaded into the wagons was meant for transportation to its destination by railways and, therefore, the same would have to be treated as ‘cargo’ and its loading into the tipper trucks and thereafter unloading into the railway wagons would have to be treated as cargo handling service. Since, in this case in the appellant's contracts with their clients, the activity of the loading of the coal/mineral ore into the tipper trucks and its subsequent unloading into the railway wagons for its transportation is clearly identified and separate rates are prescribed for the same, we hold that the service tax would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51646-51647/2014 - Dated:- 27-3-2014 - Shri G. Raghuram and Shri Rakesh Kumar, JJ For the Appellant : Shri Srinivas Kotni Advocate For the Respondent : Shri Pramod Kumar, Authorized Representative (Jt. CDR) JUDGEMENT Per. Rakesh Kumar :- The appellant entered into agreements with their clients - M/s Bharat Cooking Coal Limited, Orissa Mining Corporation etc. in terms of which they were required to load the coal/mineral ore into their dumpers at the heaps of coal/mineral ore in the mines and thereafter transport the same within the mines area up to the railway sidings, where coal/ore is unloaded into the railway wagons. The contracts mentioned separate charges for loading of coal/ore at the heaps into dumpers/tippe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-original dated 30th November, 2010 by which the service tax demand, as mentioned above, including education cess, were confirmed alongwith interest thereon under Section 75 of the Finance Act, 1994 and beside this, penalties were imposed under Section 77 and 78. Against these orders of the Commissioner, these two appeals have been filed. 2. Heard both the sides. 3. Shri Srinivas Kotni, Advocate, the learned Counsel for the appellant, pleaded that in respect of similar activity in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. vs. Commissioner, Central Excise, Customs and Service Tax, Bhubneshwar reported in 2008 (9) S.T.R. 531 has held that such activity is not covered by the definition of Car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant. He also emphasized that since bulk of the activity of the appellant is of transport, even if their activity is treated as Goods Transport Agency service, no service tax on the same can be charged from the appellant as service tax on GTA service is chargeable only from the service recipient. He, therefore, pleaded that the impugned order is not correct. 4. Shri Pramod Kumar, the learned Jt. CDR, defended the impugned order by reiterating the findings of the Commissioner in it and pleaded that the Tribunal in the case of CCE, Raipur vs. Gayatri Carriers Pvt. Ltd. reported in 2013 TIOL - 884 - CESTAT DEL. has held that the activity of M/s Gayatri Carriers Pvt. Ltd. of loading the coal at the coal heaps into the tipper trucks, and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ineral ores at the coal/mineral heaps into the tipper trucks, transport the same to the railway siding located within the mines and unload the coals/mineral ore into the wagons for its transportation. Ongoing through the sample work orders placed on record, we find that the work orders mention separate rates for transportation, tipper loading and wagon loading and according to the appellant, the invoices had been issued on this basis only. Since, the work orders prescribe separate rates for tipper loading that is loading of the coal/mineral ore into the tipper trucks, its transportation up to the railway siding and unloading of the coal/mineral ore into the railway wagons, the appellants contracts with their clients has to be treated as se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GTA service provided by the appellant agency, the liability to pay service tax in respect of this activity would be of the service recipient. 7. Next comes, the question of limitation. The show cause notice dated 23/4/09 is for the period from October 2003 to March 2008 and this demand has been confirmed by invoking extended period while the second show cause notice dated 15/10/09 being for 2008-2009 period is within time. During the period of dispute, there were conflicting decisions on the issue involved in as much as in the case of Sainik Mining and Allied Services Ltd. and G.G. Coal Transport Ltd. vs. CCE, Customs and Service Tax, Bhubneshwar (supra), in respect of similar activity, the Tribunal had taken the view that the same is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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