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TMI Blog2023 (5) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... vity is squarely covered under the ambit of definition of 'Cargo Handling Services', as defined under Section 65(23) of the Finance Act, 1994. Consequently vide the Show Cause Notice No. 72/Commr/ST/JBP/15-16 dated 21.10.2015, a demand of Rs.3,32,59,302/- for a period from October, 2013 to March, 2015 was issued to the appellant, along with penalty and interest. The demand was confirmed vide Order-in-Original No. 16/COMMR/ST/JBP/2017 dated 22.02.2017, and penalties were imposed, which is the order under challenge in the present proceedings. 3. Shri A K Batra, learned counsel for the appellant submitted that the service rendered by appellant is merely the transportation of coal in tipping trucks within the mining area after loading such coal on such trucks by pay loaders and as such it does not fall within the definition of 'Cargo Handling Services'. He further mentioned that M/s. NCL had awarded contracts to the appellant merely for the transportation of coal through tippers. The loading and unloading is merely an incidental activity to the said transportation. He also submitted that because of said incidental activity, the services as that of 'Goods Transport Agency' cannot be ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of 'Cargo Handling Service' and 'Goods Transport Agency Services'. The former being defined under Section 65(23) of the Finance Act, 1994 and is taxable under Section 65(105)(zr) of the Act and the latter is defined under Section 65(50b) of the Act which is taxable under Section 65(105)(zzp) of the Act. Both are reproduced as follows: "65(23)- 'cargo handling service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods." "65(50b)- 'goods transport agency' means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called." The perusal of definition of Section 65(23) of the Act makes it clear that the 'Cargo Handling Service' is an activity which requires: (i) A cargo, (ii) To be transported from freight terminal (ii) The activi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency." 7. The Hon'ble Supreme Court has accepted Hon'ble High Court interpretation to the Entry viz. 'Cargo Handling Service' wherein it was observed that there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and the service provider must independently be involved in loading unloading or packing-unpacking of the cargo. Also from the various decisions as relied upon by the appellant, we observe that issue has several times been adjudicated by this Tribunal. The decision of the Hon'ble Supreme Court in the case of Singh Transporters Vs. Commissioner of Central Excise, Raipur [2012 (27) STR 488] squarely covers this issue. The issue involved therein was whether the coal transported from pitheads of the mines to the railway sidings would fall within the taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with incidental loading and unloading including wagon loading is principally and dominantly for transportation of coal within the mines and hence, cannot be taxed under the category of Cargo Handling Service and accordingly, set aside." 8. We note that the Department has, from time to time, issued several circulars clarifying this overlapping of two services with respect to one activity of transporting load through truck tippers. One such clarification dated 06.08.2008 reads as follows: "3. Issue : GTA provides service to a person in relation to transportation of goods by road in a goods carriage. The service provided is a single composite service which may include various intermediary and ancillary services such as loading/unloading, packing/unpacking, transshipment, temporary warehousing. For the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of intermediary and ancillary services. In such a case, whether the intermediary or ancillary activities is to be treated as part of GTA service and the abatement should be extended to the charges for such intermediary or ancillary service? Clarificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x liability on the Appellant, no reference has been made to the new Charging Section i.e. Section 66B of the Act applicable from 01.07.2012 in the impugned Order. 9.2 We note that in the Larger Bench decision of the Tribunal rendered in the case of M/s Atma Steels Pvt. Ltd. & Others v. CCE, Chandigarh & Others [1984 (17) E.L.T. 331 (T)] it was held that once the provisions has been changed, then the existing provisions at the time of issue of show cause notice should be applicable and not the earlier provisions. 9.3 In the case of M/s Mahakoshal Beverages Pvt. Ltd. Vs Commissioner of Cz. Ex., Belgaum [2007 (6) STR 148 (Tri-Bang)] the Tribunal held that demand cannot be confirmed in accordance with deleted provisions. "4. On a careful consideration, we are not agreeable with the contentions raised by the Commissioner in the written submissions and the learned JDR. The proviso to Section 73 of the Act was promulgated by Finance Act 2004 but adding proviso to Section 73 of the Central Excise Act, which is parimateria to Section 11A of Central Excise Act. The ingredients of the said proviso have not been invoked in the show cause notice to demand duty for larger period. The content ..... X X X X Extracts X X X X X X X X Extracts X X X X
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