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TMI Blog2019 (4) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... fied the application of Section 65A while classifying a composite service - 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. Thus, the demand of ₹ 80,62,565/- in respect of cargo handling service in the first appeal is set aside. Demand of ₹ 20,96,816/- on site formation services - HELD THAT:- The activity of making of 100 meters dia holes with contractors own equipment is not one relating to site formation - definition of Site formation and clearance, excavation and earthmoving and demolition as defined under Section 65(97 a) of Finance Act, 1994 as amended covers Drilling, boring and core extraction services for construction, geophysical, geological or similar purposes; but in the instant case, the appellants activity is limited to supply of the machine and men. The entire job is undertaken by TISCO people and there is no liability on the part of the appellant - the appeal on this count also succeeds. Penalty - HELD THAT:- There was no suppression or mis-statement by the appellants regarding the nature of activities un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, garage and pump operations. It is the contention of the Appellant that the work undertaken does not come under the purview of cargo handling services as has been held by the authorities below and also the activity of Making of 100 meters dia holes with contractors own equipment does not come under Site formation and clearance, Excavation and Earth Moving and demolition service. 4. In the case of ST/76262/2014, the Revenue is in appeal on the same activity for the period from March 2008 to March 2010, demanding service tax under cargo handling services only which has been dropped by the First Appellate authority vide order-in-appeal dated 16/05/2014, classifying the activity as transport of goods by road service as well as on the ground of limitation. 5. The ld. Consultant appearing on behalf of the assessee extensively referred to the contents of the agreement and also rate schedules of payment for various activities agreed upon, as per the said agreement. He stated that the activities as considered for cargo handling service by the department are part of the main activity of transportation of the minerals from the mine s pithead to the railway sid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants are also engaged in stacking and further loading of the cargo in the railway wagons. This is not disputed. In such situation, the original authority is correct in holding that the appellant is liable to tax under cargo handling service . It is further submitted that the responsibility of the appellant gets discharged only after completion of loading of limestone in the railway wagons. Further, he reiterated the impugned order for confirmation of demand under site formation services and maintenance and repair services. 8. Heard both sides and perused the appeal records. 9. We observe that to call an activity to be cargo handling service there should be an activity of movement of cargo from one place to another place without any internal movement within the mining area. Neither handling service outside the mining area is evident from the adjudication order nor destination outside such area has come to record. Therefore, when the factual evidence demonstrates movement of the excavated minerals within the mining area from one place to another, that operation cannot be called as cargo handling service. 10. The statutory definition of car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted. If this criterion fails then the service is to be classified as the service which gives the essential character of the service. The composite service has elements fitting into the definitions of both the services. So, recourses is to be taken to section 65A(2)(b). Here it cannot be considered that transportation is for the purpose of loading and unloading but the contrary is true. That is loading and unloading is for transportation. Any person dealing with the situation perceives the services as one for transportation and not for loading and unloading. So on this count we are not in agreement with the argument of Revenue. 13. Also, this bench in COMMISSIONER OF SERVICE TAX, RANCHI Versus HEC LTD. 2018 (9) G.S.T.L. 403 (Tri. - Kolkata) on a similar issue has held that The activities carried out by the assessee-respondents are primarily transportation of goods and loading unloading, etc., which are incidental to the transportation of goods. Such activities cannot be covered within the services of Cargo Handling as has been rightly held by the lower authorities. 14. The dominant activities undertaken by the appellants under the contract in quest ..... X X X X Extracts X X X X X X X X Extracts X X X X
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