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TMI Blog2021 (3) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... her head either before the introduction of the service or thereafter - Even if they had not fulfilled the conditions, there is no case for the Department to charge service tax on this service under any other head - the demand of service tax under the head of Commercial and Industrial Construction Service needs to be set aside. Cargo handling service - supply of river sand - HELD THAT:- The first contract is supply of river sand; it is not for loading or unloading any cargo. Needless to say that if somebody has to supply river sand it has to loaded into the truck and unloaded it at the customer s destination. The nature of the contract remains to be one of supply of river sand and it cannot change into a contract for some other service. Cargo handling service - transportation of limestone from mines - HELD THAT:- The contract is evidently for transportation of goods and the appellant has been discharging service tax under Goods Transport Agency service. Merely because transportation also requires the appellant to load and unload goods, it cannot be said that the appellant has performed cargo handling service - This view with respect to the demand for an earlier period for these serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 97,493/- 97,493/- 18 4 Supply of Tangible Goods Supply of Tangible Goods 10(iii) 5,58,614/- 5,58,614/- 17 Total 52,49,679/- 52,49,679/- +Interest+ Penalty u/s 76 5. Learned Counsel for the appellant submits that for an earlier period in Service Tax Appeal No. 53280 of 2016 this Bench had passed Final order No. 50287 of 2019 dated 13 February 2019. In that order there were demands under :- (i) commercial or industrial construction service; (ii) supply of tangible goods service; (iii) cargo handling service towards supply of sand; (iv) cargo handling service towards transport limestone. 6. They had not contested the service tax liability under the heads of "supply of tangible goods service" and "commercial or industrial construction service". The service tax on the cargo handling service was set aside by this Bench. Para 15-16 of this order reads as follows :- "15. It is seen from the record that the appellant has already discharged the service tax as admitted by them under the category of Commercial or Industrial Construction Service, Supply of Tangible Goods Service as well as for Transportation of Goods under GTA. As discussed above, we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.01, 16.02 of the impugned order were as follows : "16.01 It is seen that a demand of ₹ 3,11,604/- has been raised under Commercial or Industrial Construction Service (including value of goods/material provided by the recipients of service). The services relate to providing and laying PCC in foundation for M/s Enercon India Ltd. and Construction of boundary wall of solar plant for Lanco Solar Thermal Power Project. The demanded tax has been calculated after allowing abatement to the assessee. I find that the assessee has nowhere contended that the services provided by them are not taxable under Commercial or Industrial Construction Service. The assessee has only contended that they have already paid service tax amounting to ₹ 16,12,345/- under Works Contract Service against the work/work order for which service tax has also been demanded under Commercial or Industrial Construction Service. 16.02 In this regard, I find that for payment of service tax under Works Contract Service, the assessee has to fulfil the conditions laid down in Works Contract (Composition Scheme for Payment of Service Tax) Rules, 2007 and one of the conditions laid down in these Rules is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one contract was for supply of river sand and another is for transportation of limestone the demand has nevertheless been made under "cargo handling services" and confirmed in the impugned order. Identical demand for the earlier period was set aside by this Bench in the aforesaid final order No. 50287 of 2019 dated 13 February 2019 paras 12 and 13 of which are reproduced below :- "12. The demand under the Cargo Handling Service has dealt with two types of orders executed by the appellant. One type of orders were executed for supply of materials such as river sand and crusher grit. We have perused some of the purchase orders received by the appellant for this activity. The purchase order clearly shows that the contract was for supply of material and can by no stretch of imagination, be considered as for providing Cargo Handling Service. Hence, no service tax is payable for this activity under the category of Cargo Handling Service. We set aside the demand made under this category for a total amount of ₹ 40,27,357/-. 13. The demand amounting to ₹ 32,86,411 has also been made under the category of Cargo Handling Service for the activity covered by the second set of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and it cannot be equated either with a contract for sale of goods or a contract for supply of services simplicitor. Service tax can only be demanded on Works Contract services after the introduction of a charge on works contract service and not under any other head either before the introduction of the service or thereafter. Learned Commissioner records in his order that the appellant has paid service tax under "works contract service composition scheme", but contended that they have not fulfilled the conditions required under works contract composition scheme. Even if they had not fulfilled the conditions, there is no case for the Department to charge service tax on this service under any other head. Therefore, the demand of service tax under the head of Commercial and Industrial Construction Service needs to be set aside and we do so. 17. As far as the demand of service tax under cargo handling service is concerned, it is on two counts - (i) supply of river sand (ii) transportation of limestone from mines. 18. The first contract is supply of river sand; it is not for loading or unloading any cargo. Needless to say that if somebody has to supply river sand it has to loaded int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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