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TMI Blog2017 (9) TMI 1494X X X X Extracts X X X X X X X X Extracts X X X X ..... tation and feeding of non ores to crushing plants for processing are primarily in the nature of mining and not covered under cargo handling services - the services rendered by the appellant cannot be brought under the fold of cargo handling services. Appeal allowed - decided in favor of appellant. - Appeal No. ST/21751/2014 - Final Order No. A/31556/2017 - Dated:- 7-9-2017 - Mr. M. V. Ravindran, Member ( Judicial ) And Mr. Madhu Mohan Damodhar, Member ( Technical ) Ms. Rukmani Menon, Advocate for the Appellant Sh. V. Srinivasa Rao, Asst. Commissioner/ (AR) for the Respondent ORDER [ Order Per : Madhu Mohan Damodhar ] 1. The facts of the case are that Sri Datta Ranga Transport, the appellants herein, were engaged in transportation, excavation and loading of lime stone in the mines belonging to cement factories. Appellants had entered into a contract dated 04.06.2004 for carrying out following activities at Krishnapuram Limestone mines of M/s India Cements Limited. (a) Loading of blasted limestone at the mine face and transportation of the same upto the crusher and unloading into crusher, hopper, @ 500 tonnes per hour, so as to ensure crushing of minim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 267/- and interest liability thereon and imposed penalties under sections 76, 77 78 of Finance Act, 1994. Aggrieved, appellants have once again come before this forum vide this appeal. 3. On 07.09.2017, when the matter came up for hearing, Ld. Advocate Ms. Rukmani Menon made oral and written submissions which can be summarised as under: (a) Before going into the merits, the appellant is contending that the order suffers from lack of jurisdiction. The Commissioner has held that Guntur Commissionerate which has issued the Show Cause Notice and adjudicated the same had the jurisdiction to do so. (b) In the Partnership Deed documents, it had been stated that the office and the business of the firm shall be situated at Housing Board, Miryalaguda, Nalgonda District . The Commissioner has not taken these documents into consideration on the ground that these were unregistered documents. (c) The Miryalaguda Range had directed the appellant to take registration under the category of Mining activity and the registration has been done in the Miryalaguda Range. They also have been directed to deposit service tax by the office at Miryalaguda. That the Service Tax has been depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loading, unloading and similar activities which bring them within the fold of cargo handling services . 5. Heard both sides and gone through the facts. The core issues that come up for appellate decision in this matter are as follows: (i) Whether the appellant would fall under the jurisdiction of Guntur Commissionerate or Hyderabad Commissionerate for service tax matters. (ii) Whether the services rendered by them are classifiable under cargo handling charges as alleged by Department or under mining services as claimed by the appellant. (iii) Whether the proceedings per se are hit by limitation. 6. On the question of jurisdiction, we find that though the appellant may well have had a registered office in Miryalaguda, the activity which they were performing as service provider was located in the Krishnapuram Limestone Mines of M/s India Cements Limited. Towards this end, they also had an office address in Jaggaiahpet, which comes under the jurisdiction of Guntur Commissionerate for service tax purpose. The contract with India Cements Limited, placed at page 56 of the Appeal papers, is addressed to Sri Datta Ranga Transport, D.No. 9-76, Jaggiahpet, Krishna Distr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. * w.e.f. 16.05.2008: cargo handling service means loading, unloading, packing or unpacking of cargo and includes, - (a) Cargo handling services provided for freight in special containers or for noncontainerised freight services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight; and (b) Service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking. But does not include, handling of export cargo or passenger baggage or mere transportation of goods; As per 565(105)(2224), w.e.f. 01.06.2007, the taxable service in respect of mining service, means any service provided or to be provided to any person, by any other person in relation to mining of Mineral Oil or Gas. 9. The Tribunal in the case of Thriveni Earthmovers Pvt. Ltd vs. CCE, Salem [2009(15)S.T.R. 393 (Tri.-Chennai), had occasion to address the very same issue. Tribunal held that loading and tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the provisions of Mines Act and mining regulations when they moved limestone and rejects within the mining area. We find that the loading and unloading of limestone and rejects in mining area under contract with CCC were mining services .Section 65(23) of the Finance Act, 1994 defines Cargo handling service as under:- Cargo handling service means, loading, unloading, packing or unpacking of cargo and includes cargo handling services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling services incidental to freight terminal, for all modes of transport and cargo handling services incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. Transport of limestone and rejects within the mining area cannot be treated as transport of cargo . The Tribunal examined the scope of cargo handling service in relation to loading and transport of coal and iron ore in the mining area respectively in Sainik Mining Allied Services Limited (supra) and CCE Vs. B.K. Thakkar (supra). In the Sainik Mining Allied Services case the Tribunal s has observed as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... )], it was held that activities of excavation, transportation and feeding of non ores to crushing plants for processing are primarily in the nature of mining and not covered under cargo handling services. Moreover, iron ore cannot be commercially called cargo and that incidental activities of loading and unloading does not give entire contracted activities the character of cargo handling service. In S.B Construction Company vs. Union of India [2007-TMI-809-High Court, Rajasthan)], the Hon ble High Court held that coal services rendered by the petitioner under the subject contract did not fall within the ambit of cargo handling service . 12. We find that the facts in the present case are on all fours with those in the decisions discussed supra. Following the ratio of these decisions, we have no hesitation in holding that the services rendered by the appellant cannot be brought under the fold of cargo handling services . In consequence, the impugned order upholding the contrary, cannot be sustained and will have to be set aside which we hereby do. 13. Appeal is therefore allowed. As the appeal succeeds on merits, the prayer of appellant on limitation is not gone into. ( Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X
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