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TMI Blog2018 (11) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... carried by the Appellants squarely falls under the definition of cargo handling service. Any activity incidental to freight of cargo is liable to be taxed under “cargo handling service” - the levy of service Tax on merit is upheld but levy restricted to normal period - penalty also set aside. Activity of movement of coal within the mine from pit head to other areas - Held that:- This activity has been considered in the appellant’s own case for a different mine in the decision [2017 (9) TMI 1329 - CESTAT KOLKATA]. For such movement of coal within the mine, the Tribunal has taken the view that the activity cannot be levied to Service Tax under the “Category of Cargo Handling Services” - demand cannot be upheld. Appeal allowed in part. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , penalties were also imposed under various sections of the Finance Act, 1994. This order is challenged in the present appeal. 4. The appellant is represented by Shri Kartik Kurmi, Ld. Advocate. Arguing the case of the appellant, he submitted as follows:- (i) The loading of coal into Railway wagons at the Railway siding was for onward transportation of coal to areas outside from mine. This issue has been decided on merit against the appellant in the case of Gajanand Agarwal V. Commissioner, reported in 2009 (13) S.T.R. 138 (Tri.- Kolkata). However, he submitted that since the levy was in its infancy, the penalty involved may be dropped. He further prayed that the demand may be restricted to normal time limit. (ii) Regarding the mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvice Tax under the category of Cargo Handling Services . 7. After perusal of the case laws relied by both sides, we note that the first activity has been held to be liable for payment of Service Tax under Cargo Handling Services in the case of Gajanad Agrawal v. Commissioner (supra) where the Tribunal observed as follows:- 17. It was noticed from the agreement of the parties that time was essence of the contract. The nature of activity that was carried by the Appellants was to load the cargo i.e. coal in the Railway wagons. Such an activity squarely falls under the definition of cargo handling service! provided by Section 65(23) read with Section 65(105) of the Finance Act, 1944 (sic) (1994) and brings the appellants to the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been considered in the appellant s own case for a different mine in the decision reported as 2018 (12) G.S.T.L. 43 (Tri.-Kolkata). For such movement of coal within the mine, the Tribunal has taken the view that the activity cannot be levied to Service Tax under the Category of Cargo Handling Services . The observations of the Tribunal are reproduced below:- 7. After hearing both sides and on perusal of the records, we find that the activity mentioned in Sl. No. (2) above is for loading and transportation of coal from one point to another point within the mines. The contract is mainly for transportation of raw coal for further processing and involves, loading and unloading of the dumpers/tippers. We find that the activity has been deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chargeable to service tax. We also find that there was no suppression or misstatement 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. Accordingly, we set aside the impugned order and allow both the appeals with consequential benefit to the appellants. 10. The same has been followed by the Tribunal in various other cases. Consequently, we find no justification to uphold the demand of Service Tax under the category of Cargo Handling services for the work carried out in respect of transportation of coal within the Mining area. 11. The Ld. DR has sought to differentiate the decisions in favour of the appellant by citing certain other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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