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TMI Blog2023 (2) TMI 1315X X X X Extracts X X X X X X X X Extracts X X X X ..... of these kinds of companies. Hon ble Supreme Court in Sushil Company [ 2016 (4) TMI 987 - SUPREME COURT] has accepted Hon ble High Court interpretation to the Entry viz. Cargo Handling Service where 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 loadingunloading or packing-unpacking of the cargo. The only reason given by the adjudicating authority for declining the impugned activity to be of that Goods Transport Service is the absence of the consignment note. The mere absence of consignment note is highly insufficient to hold that the activity in question even is not a goods transport agency. The absence of consignment note cannot be the basis for changing classification of the service from Goods Transport Agency service to Cargo Handling Service . With these observations and findings we hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994. Resultantly, vide which the Show Cause Notice No. 85/2013 dated 18.10.2013, a demand of Rs.35,07,076/- for a period from September, 2008 to March, 2010 was proposed to be recovered from the appellant, alleging the same to be the tax liability for rendering the Cargo Handling Services while transporting the coal to M/s. NCL. The said proposal was initially confirmed vide Orderin- Original No. 93/2014 dated 13.10.2014. The appeal thereof has been rejected vide the order under challenge. 3. We have heard Shri Prashant Shukla, learned Advocate for the appellant and Shri Ravi Kapoor, learned Authorized Representative for the department. 4. Learned Counsel for the appellant has mentioned that the service rendered by the 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 is not falling in the definition of Cargo Handling Services . It is 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 said transportation. It is mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he services in question being the Goods Transportation Service . Thus seen from this observation also no suppression of facts can be alleged against the appellant. Hence, there remains no ground from invoking extended period of limitation. The show cause notice would have been issued during the normal period. To support these contentions, learned Counsel has relied upon the following decisions: (i) Sankhla Udyog Vs. Commissioner of C.Ex. S.T., Jaipur reported in 2015 (38) S.T.R. 62 (Tri.-Del.) (ii) Rajasthan Renewable Energy Corporation Ltd. Vs. Commr. of C. Ex., Jaipur I reported in 2017 (51) S.T.R. 269 (Tri.-Del.) (iii) Commr. of C. Ex., Jaipur-I Vs. Rajasthan Renewable Energy corpn. Ltd. reported in 2018 (15) G.S.T.L. 661 (Raj.) (iv) Rochem Separation Systems (India) P. Ltd. Vs. Commr. of S.T., Mumbai-I reported in 2015 (39) S.T.R. 112 (Tri.-Mumbai) (v) Commr. of S.T., Mumbai IV Vs. Rochem Separation Systems (I) P. Ltd. reported in 2019 (23) G.S.T.L. 446 (Bom.) (vi) Continental Foundation Jt. Venture Vs. Commr. of C. Ex., Chandigarh I reported in 2007 (216) E.L.T. 177 (S.C.) With these submissions the order under challenge is prayed to be set aside and appeal is prayed to be all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follows: To appreciate the contentions herein, foremost, it would be appropriate to first go through the definition 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency. 9. Hon ble Supreme Court has accepted Hon ble High Court interpretation to the Entry viz. Cargo Handling Service where 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 loadingunloading 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. Mirza Hasam (supra) is the latest judgment. In this decision the earlier decision of Hon ble Supreme Court in the case of Singh Transporters Vs. Commissioner of Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed under the category of Cargo Handling Services. Therefore, we are of the view that the Service Tax demand of Rs.2,47,60,534/- on activities of transportation 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. 10. We also observe that department itself from time to time has been issuing several circulars clarifying this overlapping of two services with respect to one activity of transporting load through truck tippers. One such circular is dated 06.08.2008. It 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad then value of such ancillary services should be counted towards GTA Services. He has further submitted that learned Original Authority has relied on said CBEC Circular as one of the grounds for his decision. He has also submitted that the issue is covered by the decision of this Tribunal in the case of M/s. Rungta Projects Ltd. v. CCE reported at 2017-TIOL-3782-CESTAT = 2018 (9) G.S.T.L 404 (Tri.-All.). We also observe that in the case of Tycoon Industries Pvt. Ltd. V. CST reported in 2019-TIOL- 1509-CESTAT-Kol, it is held by this Tribunal while dealing with similar facts and circumstances, that the dominant activities under the contract are movement of mineral within the mining area and loading to Railway Wagon, which includes loading and unloading, are merely incidental while the activities undertaken are principally transportation of coal within the mining area, hence, the gross amount received for the same cannot be taxed under the category of Cargo handling Services. Therefore, we are of the view that the Service Tax demand of Rs.2,47,60,534/- on activities of transportation with incidental loading and unloading including wagon loading is principally and dominantly for tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or being reversed. In the given circumstances, we do not find existence of any such circumstance as would have entitled the department for invoking the extended period of limitation. Hon ble Apex Court in the case of Continental Foundation Jt. Venture (supra) has clarified that there cannot be any suppression or mis-statement of fact which is not willful. 15. Though, learned DR has impressed upon the absence of registration in the name of the appellant as an act of suppression on the part of the appellant but from the findings above it stands concluded that services in question are not the Cargo Handling Services but are Goods Transportation Agency service. The liability whereof has to be discharged by the recipient thereof under reverse charge mechanism. The recipient in the present case is M/s. NCL. hence, we do not find any reason with appellant to have registration under service tax regime. We accordingly hold that the impugned show cause notice has been issued after wrongly invoking the extended period of limitation. Hence, the show cause notice is held to be barred by limitation. 16. As a consequence of entire above discussion, the Order under challenge is hereby set aside. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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