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TMI Blog2023 (7) TMI 769X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that he was undertaking the work of excavation apart from loading and transportation. Clarifying, Mr. Rao stated that they have entered into contract with Metro Cement Ltd; that the excavated area will be measured by their surveyor in the presence of Assistant Mines Manager/Geologist. The billing is done based on the report given by them. Thus submitted that the work undertaken by them includes excavation also and further stated that without excavation, loading cannot be done - It is further found that the learned Commissioner have observed in the Impugned Order that the work order also do not indicate that the stockyard or crusher to which material is transported is within the mine area. The Appellant did not substantiate this contention that the crusher/hopper is within the mine area. They also did not assert that stockyards are within mining area. The primary activity done by the Appellant was mining and the activity of loading and unloading of mineral and dumping the same to the prescribed stockyards/crusher is incidental to mining. Further such activity has been defined and made taxable under the head Mining service with effect from 1st June, 2007 - the activities d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they were of the opinion that the activity undertaken by them was not covered under Cargo Handing service, as they were primarily engaged in excavation and transportation of mineral and not handling of cargo. 2. On perusal of the agreement, it appeared that for Madras Cements Ltd, Appellant was doing loading and transporting of limestone rejects/high silica/Phyllite/B belt and dumping in specific dump yard/stockyards including dozing. For Andhra Cements Ltd, Appellant was doing the work of loading of ROM, limestone, waste etc., with hydraulic excavators into tippers/dumpers and preparation of drilling block and cleaning of loading area after blasting for tipper movement. For Kakatiya Cement and Sugar Industries Ltd, Appellant was doing the work of loading and transportation of limestone. For Astra Mining Private Ltd, Appellant was doing the work of loading and transportation of limestone. It further appeared to revenue that the activities viz., loading and unloading of limestone are post mining activities and accordingly fall under the head Cargo Handling service . Reference was also made to Board circular No. 232/2/2006 CX4 dated 12th November, 2007, wherein, Para 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining regulations in the activity of moving limestone and rejects within the mining area. The Tribunal found that the loading and unloading of limestone and rejects in the mining area under the contract, were mining services. The Tribunal also noticed that Cargo Handing services has been defined and means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided by a container freight terminal or any other freight terminal for all modes of transport and cargo handing services incidental to freight terminal, but does not include handling of export cargo or passenger baggage or mere transportation of goods. This Tribunal also relied on the preceding judgement in the case of Sainik Mining and Allied Services Ltd vs CCCE ST [2008 (9) GSTL 531 (Tri-Kol)]; and CCE vs BK Thakkar [2008 (9) STR 542 (Tri-Kol)], wherein this Tribunal had observed that the activity in the nature of mechanical transfer of coal from coalface to tippers and subsequent transportation of the coal within the mining area does not come under the purview of Cargo Handing service. Thus, the finding was to the effect that movement of coal within the mining area does not fall in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch, 2007 under Cargo Handing service. This Tribunal, after examining the issue and hearing the parties, observed that the Assessee has got a composite contract for undertaking mining activity. From the work orders it is evident that the activities were to be performed entirely within the mining area, for a lump-sum price. The Department artificially bifurcated the services under the category of Cargo Handling service, Site Formation service and Business Auxiliary service and have demanded tax. In fact there is no separate charges payable for such services as per the work orders. In the show cause notice, each category of service has been arrived at artificially without any basis. The Tribunal relied on the ruling in the case of Larsen and Toubro in the matter of Works Contract, wherein the Hon ble Apex Court had observed that when a particular levy was introduced for certain activity with effect from certain date, it is to be construed that such activity was not liable to service tax prior to that date. Referring to the Board Circular dated 12.11.2007, it was observed that, the Circular clarifies that Mining services were not liable to Service Tax prior to 1st June, 2007. The lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the activity in the case of Gayatri Carriers was classifiable under the category of Cargo Handing service. 9. Learned AR also relies on the ruling of Calcutta Industrial Supply Corporation vs CST, [2019 (31 GSTL 487] wherein the nature of work was transportation, loading/unloading of coal in railway wagons/trucks/tippers by hiring payloaders within mines, under a contract where rates for loading and transportation were given separately. The Appellant in that case entered into various contracts for different jobs with Damodar Thermal Power Station for excavation of ash, transportation and disposal in the abandoned mines of Eastern Coalfields Ltd etc. They have also entered into contract with Bharat Coking Coal limited for various works including soil excavation, removal of over burden, transportation, drilling and blasting of coal etc. It has also entered into contract with NBCC Ltd as a sub-contractor for construction of staff dormitory. This Tribunal observed in respect of work done with Mahanadi Coalfields Ltd was in the nature of hiring of payloaders for mechanical transfer of coal into railway wagons and in respect of Western Coalfields Ltd work was hiring of payloader ..... X X X X Extracts X X X X X X X X Extracts X X X X
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