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TMI Blog2008 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... aman, Member (T) S/Shri G. Shiva Dass, Advocate and G. Venkatesh, Consultant, for the Appellant. Smt. Sudha Koka, SDR, for the Respondent. [Order per: S.L. Peeran, Member (J) (Oral)]. - All the three stay applications are taken up together for disposal as the issue is common. The appellants are required to deposit the following amounts: (a) Rs. 2,25,19,764/- and Rs. 74,21,738/- in appeal ST/62/2007 (b) Rs. 1,39,67,579/- in appeal ST/71/2007 2. The appellants have already deposited the amounts of Rs.1,39,67,579/- and Rs. 74,21,738/- respectively. They are required to pre-deposit an amount of Rs. 2,25,19,764/- which pertains to Stay Application No. ST/50/2007 in ST/62/2007. A Misc. Order No. 211/2007 dated 18-4-2007 S.T.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were engaged in 'cargo handling service' and hence they are required to pay the demanded amount. 5. After considering the submissions made from both the sides we find that according to the definition in Section 65(21) of the Finance Act, 1994 the 'cargo handling service' means - (i) Loading, unloading, packing or unpacking of cargo, and includes - (ii) Cargo handling services provided for freight in special containers or for non-containerised freight, (iii) Services provided by a container freight terminal or any other freight terminal and (iv) Cargo handling service incidental to freight. 5.1 The definition applies to all modes of transport. The only exception provided in the definition is handling of export cargo, passenger ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the site of Thermal Power Station with the help of wagon tippling system to be fed in the boiler bunkers through conveyor system. He states that since in that case, the Hon'ble High Court has held that the activity was not coming under the scope of cargo handling service, in the present case though the goods packed by the Appellants are to be moved by transport subsequently, the same should not be covered under the cargo handling service. With great respect, we note that the Hon'ble Rajasthan High Court has considered un-loading of the coal by the wagon tippling system and thereafter the coal was transported by conveyor belt and not by any other means of transportation. Hence, the ratio of the decision based on such consideration will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Appellants such as unitising, straping, packeting or packing the impugned goods into cargo for subsequent movement by trucks and/or rail. We also take note of the learned Advocate's fair submission that nothing more is required to be done to the cargo before the same is transported and hence we have no hesitation in holding that the Appellants are engaged in packing of cargo for transport and hence they are squarely covered under the definition 'cargo handling service' for the impugned period and hence they are liable to pay the service tax as held by the authorities below. 5.5 Learned Advocate states that part of the cargo was meant for export and hence by definition the same is required to be excluded from the ambit of levy of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst them. Therefore, they should pre-deposit the balance amount of Rs. 2,25,19,764/- 6. We agree with the learned SDR that the issue in the assessee's case has been decided by the Kolkata Bench. As a co-ordinate Bench, we are bound by the order. All arguments made by the learned Counsel that the Kolkata Bench's order not a correct one, cannot be accepted at this stage. They are required to pre-deposit the amount of Rs. 2,25,19,764/- (Rupees Two crores twenty-five lakhs nineteen thousand seven hundred and sixty four only) within three months from today and report compliance on 22-5-2008. Failure to comply will entail dismissal of the appeal. As the other two amounts have been deposited, penalties required to be deposited in all these thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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