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TMI Blog2023 (12) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... s transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines - A perusal of the work order reveal that the primary service in this case is transportation and the loading and unloading work is ancillary to the transportation service - the Appellant has rendered transportation service. In terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the recipients are liable to pay service tax for the GTA services received by them - the demand of service tax from the Appellant under the category of 'Cargo Handling Service' is not sustainable. Demand of Service Tax under the category of 'Mining Services' - HELD THAT:- The services rendered by the Appellant was transportation of coal. They have not received any contract for actual mining of coal - A perusal of the work order received by them would reveal that it is a composite contract involving transportation as the primary service. All other services are incidental or ancillary to transportation service - the adjudicating authority has not brought in any evidence to substantiate the allegation that the appellant has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejection. The impugned order set aside - appeal allowed. - HON BLE MR. R. MURALIDHAR MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri Arvind Modi Shri Rajeev Mittal , both Chartered Accountant for the Appellant Shri S. S. Chattopadhyay , Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : The Appellant, M/s. BKB Transport Pvt. Ltd. are engaged in providing the services of Transportation of Goods, Mining Services, Cargo Handling Services, Works contract Services etc. The Appellant has been primarily rendering the above said services to the Subsidiaries of Coal India Ltd., Mejia Thermal Power Station, Bokaro Thermal Power Station, Tenughat Vidyut Nigam Ltd., Jindal Steel Power Ltd., Hindalco Ltd., Damodar Valley Corporation etc. 2. The Appellant was issued a Show cause Notice dated 07.04.2014, demanding total Service Tax of Rs.23,12,96,812/-on various Work Orders and recovery of Cenvat credit of Rs. 9,36,76,181/-under Rule 6(3)(i) of Cenvat Credit Rules, 2004 (CCR 04). The total Service Tax/ Cenvat credit r̥eversal demanded in the Notice amounts to Rs. 32,49,72,993/- along with interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 (SC) 3) Consignment Notes are not issued by transporters but CCL and other units of Coal India Limited have paid Service Tax under GTA Services on RCM basis Transportation service provided by Others GTA 48,70,243 The Service Providers are not issuing any Consignment Note and are the agents of the Appellant. Further, taxation of the service will result in double taxation (once in the hands of the appellant and then in the hand of the ultimate service recipient i.e the clients of the appellant) hence not taxable Total 7,83,23,993 4. Aggrieved against the confirmation of the demands in the impugned order, the Appellant filed appeal before this Tribunal. The department also filed appeal against the dropping of the demand. Since, both the issues arise from the same Order-in-Original, both the appeals are taken up together for decision by a common order. 5. In their grounds of appeals the Appellant made the following submissions: (i) Regarding the demand of Service Tax under Cargo Handling Service, the Appellant submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents from 2005 onwards. Accordingly, they contended that the demand of service tax under the category of mining service is not sustainable. In support of their contention, the Appellant relied on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise Service Tax vs. Singh Transporters [2017] 84 taxmann.com 39 (SC). (iii) Regarding the demand of Service Tax on the transportation services rendered by other transporters as sub-contractors, the Appellant submits that the transporters have not issued any 'Consignment Notes'. In fact, they have raised the invoice for transportation service to their clients CCL/BCCL and the receiver has paid service tax on the full value of the contract. As the sub-contractors who provided the transportation service have not issued any 'consignment note', they are not liable to pay service tax under the category of GTA service under reverse charge. Further, they submit that there is only one transportation service carried out, for which they have raised the invoice and the recipients have paid service tax under GTA for the full value. Hence demanding Service Tax from the sub-contractor transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . D.R relied upon the grounds of appeal filed by the department. 9. Heard both sides and perused the appeal records. 10. Regarding the demand of Service Tax under Cargo Handling Service, we observe that the Appellant has rendered the service to Tenughat Vidyut Nigham Limited, Damodar valley Corporation and Mejia Thermal Power Corporation, for evacuation of ash from different Ash Ponds located at the power stations. The ash was transported to the abandoned mines of CCL, ECL, BCCL for the disposal of ash. We observe that the ash was transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines. A copy of the Work Orders received by the Appellant is scanned and Reproduce below: 8. A perusal of the work order reveal that the primary service in this case is transportation and the loading and unloading work is ancillary to the transportation service. Thus, we do not agree with the contention of the Ld. D.R. that the primary service in this case is loading and unloading. The Appellant cited the decision in the case of Purba Medinipur Jilla Parishad vs. CCE, Haldia-, Order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture of bricks etc. and hence it is not waste, which is being removed from the pond. It has specific utility and capable of being sold in the market. 13. We find that the issue in the present case is covered by the declaration of this Bench in the case of M/s. Calcutta Industrial Supply Corporation Vs. Commr. of Service Tax, Kolkata. The relevant para is reproduced below:- 8. Cleaning Service: 8.1 The Ld. Counsel submitted that the appellant is merely loading/lifting Ash from the Ash ponds, transporting it upto a distance of 25 Kms. and unloading the same at the abandoned mines of ECL.It is further submitted that the contract is essentially for transportation of Ash and and not for rendering any cleaning activity. The Ld. Counsel fairly submitted that they are not contesting the amount of Rs.2,03,476/- on CHP maintenance work against cleaning service, which they have already paid. 8.2 The adjudicating authority observed that the appellant was allocated work by Damodar Valley Corporation (DVC) for removal of technological waste from CHP area, DTPS and it would come under cleaning service. It is further observed that the appellant entered into contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Services', we observe that the services rendered by the Appellant was transportation of coal. They have not received any contract for actual mining of coal. A copy of the work orders are scanned and reproduced below : 12. A perusal of the work order received by them would reveal that it is a composite contract involving transportation as the primary service. All other services are incidental or ancillary to transportation service. We find that the adjudicating authority has not brought in any evidence to substantiate the allegation that the appellant has rendered 'Mining Service'. The Appellant has relied on the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise Service Tax vs. Singh Transporters [2017] 84 taxmann.com 39 (SC). We observe that this decision is squarely applicable in this case. The relevant para of the decision is reproduced below: 6. Be that as it may, even if the relied upon judgment in the case of Arjuna Carriers (supra) is of no consequence to the present case, we are of the view that the activity undertaken by the respondent i.e. transportation of coal from the pit-heads to the railway sidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as raised the invoice on the full value and the recipient has paid service tax under GTA on the full value, demanding Service Tax again from the sub-contractor for the transportation service would amount to 'double-taxation'. The Appellant submitted the letter dated received from Coal India Limited to the effect that they were paying service tax under RCM basis for the transportation contract given to the Appellant. A scanned copy of the letter is reproduced below : 15.In support of their contention, the Appellant relied on the decision in the case of Lakshmi Narayan Transport Vs Commissioner of CGST and Central Excise, Bhubaneshwar, reported in (2023) 11 Centax 60 (Tri.- Cal). We observe that the decision is squarely applicable in this case. The relevant part of the said decision is reproduced below: 23. During the period January 2015 to March 2017, the Appellant started providing the services directly to M/s. JSL w.e.f. January, 2015. The Appellant issued 'Consignment notes' to M/s. JSL and invoices were raised directly to M/s.JSL. Service tax under reverse charge was duly discharged by M/s. JSL on the GTA service. 24.--------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation service including various intermediate or ancillary services provided in relation to the principal service of road transport of goods such as loading/unloading, packing/unpacking, transhipment etc., which are provided in the course of transportation, such contract cannot be vivisected. It will be treated as a contract for transportation only as the other services are naturally bundled together with the principal service of transportation. 16. By relying on the decision cited above, we hold that the demand of service tax from the Appellant on reverse charge basis under GTA service is not sustainable. 17. Regarding the department s appeal, we observe that the Appellant was issued the following two Show Cause Notices earlier: (i) DGCEI F.No. 279/KZU/JST/ST/Gr/08/5293 dated 20.10.2008 covering the period 01.04.2003 to 31.03.2008 (ii) C.No.-V (65) 157/BKB/Adj/Ran/09/12741 dated 21.10.2011. In the grounds of Appeal, the department contended that the SCN dated 20.10.2008 issued by DGCEI covered certain Contracts/Work Orders. However, the Contracts/ Work Orders dealt with in the SCN dated 11.04.2014 are different from the earlier Work Orders. The provision of service d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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