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TMI Blog2008 (7) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Jayaraman, Member (Technical) (Final Order No. 751/2008 dt. 4.7.2008 certified on 21.7.2008 in Appeal No. ST/379/2007) Shri M.S. Nagaraja, Adv. for Appellant Shri K. Sambi Reddy, JDR for Respondent [Order per Dr. S.L. Peeran Member (Judicial)] - This appeal arises from Order-in-Appeal No. 194/2007-CE dated 29.8.2007 passed by the Commissioner (A), Mangalore confirming Order-in-Original No. 3/2007 dated 31.1.2007 passed by the ACCE, EOU Division, Mysore. 2. The appellants were (i) transporting limestone from outside of mines site at BGD mines to yard at VISL township for breaking/crushing; (ii) breaking/crushing of limestone boulders into jelly of size 10 mm to 50 mm at yarn to VISL township; and (iii) loading, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contend that the service of breaking and crushing lime stone boulders in to jelly cannot be classified under Cargo Handling Service. The impugned order therefore deserves to be set aside. (ii) That theCBEC Circular No. B 1/1/2002-TRU dated 1.8.2002 referred to in para 11 of the impugned order does not support the findings of the adjudicating authority. In fact para 3 of the said circular states that the services which are liable to tax as cargo handling agent are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading, and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. That the circular gives examples of cargo handling agenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the client and not on behalf of the client. That the clause (v) of the "business auxiliary service" as initially introduced with effect from 10-9-2004 read as "production of goods on behalf of the client". Clause (v) was amended from 16-6-2005 to read as "production or processing of goods, for or on behalf of, client. Hence by applying the principles of classification as laid down in Section 65A, the activity of production or processing or goods is classifiable under clause (v) of "business auxiliary services" as defined in Section 65 (19). That the service tax is applicable only from 16-6-2005. (v) That the adjudicating authority has recorded in para 14 of the impugned order that the activity of breaking and crushing of lime stone does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lassification of service. While the appellants have held that the same is classifiable under the classification of "business auxiliary service", the respondent has held that the service is classifiable under the cargo handling service. That when the dispute involves classification and taxability of service, there is no intention to evade service tax and the larger period of limitation is not invokable. (x) That when there is no justification for demand of service tax, the question of imposition of penalties or demanding interest does not arise. 3.1 The above contentions were negatived by the Commissioner (A) and held that the activity has to be classified only under "Cargo Handling Services". He rejected the assessee's plea that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that of breaking and crushing of limestone boulders into jelly and their transportation. The definition of "Cargo" in terms of Concise Oxford English Dictionary is goods carried out commercially on ship, aircraft or truck. Normally in trade it refers to transporting, doing the function of shipping the goods in packed or unpacked conditions and handling the goods only. In the present case, the assessee is not handling the goods by loading the same from one place to unloading it at another place. The essential characteristic of the appellant's activity was breaking/crushing of limestone boulders into jelly and incidentally handing over to SAIL. 6.1 In the case of CCE, Jaipur Vs. Laxmi Trading Co. - 2008 (10,) STR 620 (Tri.-Del.) aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment before the Tribunal. The Tribunal after examining the activities undertaken by the assessee held that the activities primarily were in the nature of mining activity comprising, excavation, transportation and feeding of iron ore. Even though these activities may incidentally involve some loading and unloading and hence, held that they were not covered under 'cargo handling services'. 6.4 The above noted citations clearly apply to the facts of the case. There are no grounds made by the JDR for deferring with the same. Respectfully following the ratio of above noted judgments, the impugned order is set aside and the appeal is allowed with consequential relief, if any. (Operative portion of this Order was pronounced in open Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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