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TMI Blog2015 (9) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... "1) Whether every service rendered in mining area would have to be classified under "Mining Service" or it has to be classified according to its scope and nature of the work? 2) Whether the service as defined in the scope of the contract could be more appropriately classifiable under "Cargo Handling Services"? 3) Whether the Tribunal was right in holding that the limestone and rejects are not goods?" 2. The facts, in a nutshell, are as hereunder :- The assessee was engaged in the activity of loading, unloading and transportation of limestone from the mines of M/s. Chettinad Cement Corporation on contract basis. According to the Department, the said activities are covered under the category of "Cargo Handling Services" under sub-claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d other documents. 5. At the outset, learned counsel for the first respondent objected to the maintainability of the appeal before this Court on the above questions of law raised by the department. It is the plea of the learned counsel for the first respondent that Section 35G of the Central Excise Act, 1944 provides that an appeal on the issue relating to rate of duty of excise or value of goods for purposes of assessment would not lie before this Court. He placed strong reliance on the decision of the Supreme Court in Navin Chemicals Manufacturing and Trading Co. Ltd. - Vs - Collector of Customs (1993 (68) ELT 3 (SC)), wherein it is held as under:- "11. It will be seen that sub-section (5) uses the said expression determination of any q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods for purposes of assessment. The statutory definition of the said expression indicates that it has to be read to limit its application to cases where, for the purposes of assessment, questions arise directly and proximately as to the rate of duty or the value of the goods. 12. This, then, is the test for the purposes of determining whether or not an appeal should be heard by a Special Bench of CEGAT, whether or not a reference by CEGAT lies to the High Court and whether or not an appeal lies directly to the Supreme Court from a decision of CEGAT: does the question that requires determination have a direct and proximate relation, for the purposes of assessment, to the rate of duty applicable to the goods or to the value of the goods." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 35G read with Section 35L of the Act, this Court has no jurisdiction to entertain the appeal." (emphasis supplied) 8. In the present case, the issue raised relates to whether the handling of limestone from the quarry would be an activity in relation to mining or cargo handling services. The Department contends that the said activity is cargo handling services and, therefore, liable to service tax in terms of sub-clause 22 (zr) of the Finance Act, 1994, which is disputed by the assessee claiming that the activity would fall under mining of mineral, oil and gas. Since the issue relates to classification of goods as well as rate of duty, the decision in Navin Chemicals case (supra) is squarely applicable to the case on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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