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TMI Blog2015 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 84,88,665/- along with interest thereon and also imposing penalties under Sections 76, 77 & 78 of the Finance Act, 1994 on the appellant, M/s. Shreem Coal Carrier (P) Ltd., by classifying the services rendered by them under "Cargo Handling Services" during the period 16-8-2002 to 31-3-2007. Aggrieved of the same, the appellant is before us. 2. The facts relevant to the case are as follows : 2.1 Acting on intelligence, the officers of the DGCEI, conducted investigation into the activities undertaken by the appellant, M/s. Shreem Coal Carrier (P.) Ltd. for M/s. Western Coalfields Ltd., (WCL). Scrutiny of the work orders placed on the appellant by WCL revealed that the aforesaid work was for loading of coal from various quarries, faces, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k involved was a composite one, namely, hiring of pay-loaders and tippers and loading of coal into tippers and the transportation from pit-heads to crushing sites and unloading at the crushing sites. The loading of coal into the tippers was incidental to the transportation of coal from the pit-heads to the crushing sites where the coal was further processed. Since the activity undertaken is a composite one and the main activity is transportation, there cannot be any separate demand for Service Tax under "Cargo Handling Service". It is also his contention that during the period from 2002 to 2005, transportation of coal was not a taxable activity and therefore, no liability would accrue on handling of coal by the appellants. For the period su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area by deploying pay-loaders would not amount to 'Cargo Handling Service'. The learned Counsel also submits that the demand is time barred inasmuch as the activities of the appellants were known to the department and there was a confusion about the scope of the entry relating to 'Cargo Handling Service' at the relevant time and therefore, extended period of time could not have been invoked for confirmation of duty demand and they places reliance on the decision of this Tribunal in the case of Niranjan Lal Agarwal Vs. CCE -2012 (26) STR 457 (Tri-Del). The reliance is also placed on the decision of this Tribunal in the case of Singh Transporters Vs. CCE - 2012 (27) STR 488 (Tri-Del) in support of the contention that extended period of time c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andling Service" and the invocation of extended period of time was also justified. While coming to the said conclusion this Tribunal relied on the decision of the Hon'ble Orissa High Court in the case of Coal Carriers Vs. CCE, Bhubaneshwar -2011 (24) STR 395 (Ori.) where in a similar situation, the activity undertaken was held to be falling within 'Cargo Handling Service'. The learned AR also relies on the decision of this Tribunal in the case of Gangadhar Bulk Movers Pvt. Ltd. Vs. CCE - 2012 (27) STR 258 (Tri-Mumbai) wherein also loading and unloading of coal by a contractor for WCL, was held to fall within 'Cargo Handling Service' and liable to service tax accordingly. The learned AR also points out in the case of CCE, Raipur Vs. Gaya ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are meant for transportation from one place to another by any mode of transport could be considered as cargo. Therefore, the mined coal at pit-heads required to be transported to stockyards or crushing sites from the mine area can be certainly considered as cargo. Therefore, the activity undertaken by the appellant clearly falls within the definition of "Cargo Handling Service" as defined in law. This issue was examined at great length in the case of Gangadhar Bulk Movers (P.) Ltd's case (supra) wherein also the issue related to classification of service in respect of loading of coal on tippers by hiring pay-loaders and transporting from one place to another within the mining area. After considering the various decisions including those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, we are of the view that the activity undertaken by the appellant squarely falls within the scope of "Cargo Handling Service" as defined in law. 5.3 In respect of one of the contracts, we notice that the same relates to mining of sand from the riverbed and transporting the same to the Western Coalfield's mining area. Sand is a minor mineral and therefore, mining of sand from riverbed comes within the definition of mining service and will not come within the scope of "Cargo Handing Service" as the main activities is of mining and therefore, demand of Service Tax on mining of sand is not sustainable in law. 5.4 As regards the invocation of extended period for confirmation of demand, we notice that there was a lot of confusion re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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