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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 ..... tockpile ner crusher at Krishnapuram Limestone Mine into tippers and transporting the same to the Rope Way unloading station at the plant. Shall load and transport of 3000 MT limestone in two shifts, every day of the week except Sunday which shall be the weekly day of rest. (c) Ensure availability of adequate manpower both for operation and maintenance of equipment deployed at the above location. Shall be solely responsible for the safety of workmen and supervisors deployed. Shall indemnify our company against any claims under the provisions of Workmen s Compensation Act, 1923 by suitably providing insurance coverage for the employees and submit evidence thereof. (d) Ensure to deploy adequate loading machines, both at the mine face and at crushed limestone stockpile and adequate number of roadworthy mechanically fit Tippers of appropriate capacity, so as to ensure despatch of 3000 tonnes of limestone per day. 2. Department took the view that the activity of appellants would fall within the ambit of cargo handling services . Accordingly, a show cause notice dated 29.05.2009 was issued to the appellants, inter-alia, proposing classification of activities of appellant as cargo hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ices rendered by the appellant are within the mining area of ICO. That the main emphasis is on transporting the blasted limestone from the mine face to the crusher, hopper, crushing of the same and then transporting the crushed limestone stock pile to ropeway unloading station at plant. The scope of the contract states that the Appellant has to ensure crushing of minimum of 3000 tonnes of limestone in one shift daily, everyday of the week, except Sunday. The loading and unloading is all ancillary to the crushing activity. Clause ) at page 57 specifically stated that the appellant has to maintain all statutory records under the provisions of the Mines Act, 1952. From this, it is clear that the activity carried out by the appellant would be correctly classifiable under the category of mining activity. This is defined under section 65(105)(zzzy) to mean services to any person, by any other person in relation to mining of mineral, oil or gas . (f) Attention is drawn to the decision of CESTAT in the case of Triveni Earthmovers Pvt. Ltd. Vs. CCE, Salem reported in 2009 (15) STR 393 (Tri.-Chennai). In the said decision, the Tribunal relied on an earlier Supreme Court decision in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishnapuram Limestone Mines, or for that matter, at Miryalaguda for both their offices including the one at Jaggaiahpet. This being the case, appellants necessarily should have taken a separate service tax registration in Guntur Commissionerate, especially when they are required to discharge tax liability for their activities at Krishnapuram. We therefore hold that the preliminary objection of appellant that proceedings are hit by jurisdiction, do not carry any merit. 7. Coming to the merits of the case, we find that the main scope of the work order issued by M/s India Cements Limited to the appellant has been reproduced at 1(a) to (d), supra. No doubt, loading and unloading of the blasted/crushed limestone and transporting the same to ropeway unloading station is required to be done by the appellant. Nonetheless, it is not disputed that all these activities required to be done by the appellant are so done only within the said Krishnapuram limestone mine owned by India Cements Ltd. The activities of the appellant encompass not just transportation of blasted limestone to the crusher/hopper but also enable their crushing as also subsequent transportation of crushed limestone to the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or illuminating reading, are as under: We have heard both sides. We find that the impugned activity is loading and transport of limestone and rejects from the mine head to the premises were the mined limestone is crushed and that the entire activities take place in the mining area. In CCE Vs. Pyrites, Phosphates and Chemicals Limited 1983 (12) ELT 537 the Tribunal made the following observations:- "Further we agree with the contention of the respondents to the effect that the premises where the crushing of pyrites is being carried on will fall within the definition of Section 2(1)(j) of the Mines Act, 1952 since the premises are adjacent to the mine and on these premises crushing is carried on for getting low grade pyrites prepared for sale. Thus, this would squarely fall within the ambit of Item (X) of Section 2(1)(j) of the Mines Act, 1952." In Chowgule & Co. (P) Limited Vs. Union of India 1993 (67) ELT 34 (SC) the apex Court held that the process of mining comes to an end when ore is extracted from the mines, washed, screened and crushed in the crushing plant and stacked at the mining site. We find that the impugned activity undertaken by the appellants is covered by the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants under the contract in question are primarily the movement of coal within mining area and transfer of coal from the coal face to the tippers, if at all, includes loading and unloading which are merely incidental. Cargo in commercial parlance has a definite connotation which is carried as freight in a ship, plane, rail or truck and the activities undertaken by the appellants in terms of the contracts on behalf of M/s. MCL to move coal within mining area do not fall in the category of cargo handling service. Moreover, the activities undertaken are principally the transportation of coal within mining area and hence, the gross amounts received for the same cannot be taxed under the category of cargo handling service. We have, therefore, no hesitation in our mind to hold that the definition of cargo handling service under the Finance Act, 1994, does not include the kind of activities undertaken by the appellants and hence the same are not chargeable to service tax. We also find that there was no suppression or mis-statement by the appellants regarding the nature of activities undertaken by the appellants and hence the imposition of penalty on them is not at all justified. Accordingl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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