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TMI Blog2024 (7) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... service for which tax liability lies with the service recipient in the present case JK Papers Ltd and not with the appellant. The impugned orders are not sustainable, hence, the same are set aside - Appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri Kaushal Rathi , Advocate for the Appellant Shri AR Kanani , Superintendent for the Respondent ORDER RAMESH NAIR : The brief facts of the case are that the appellant has provided services of transportation of coal from railway Somagadh to factory of M/s. JK Papers Limited and feeding the same into the coal crusher or stirring the same into coal shed and transportation of coal ash from power house of JK Paper Limited from Stone quarry and other places within range of 10 Kms. from the mills. The appellant had a belief that the activity is goods transport service which is liable to service tax under reverse charge basis wherein M/s. JK Paper Limited had to pay the service tax at the abated rate in terms of Notification No. 26/2012-ST dated 20.06.2012 and Notification No. 30/2012- ST dated 20.06.2012. The case of the department is that the appellant s service does not fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e activity is of transportation of goods. We also perused the contract between the appellant and JK Paper Ltd which included the activity of unloading of cargo for which Rs. 15 per ton charges is fixed and transportation of cargo from railway siding to the factory of JK Paper and feeding into coal crusher for which a charge of Rs. 44 per MT is fixed. Accordingly, as per these terms and conditions major activity of the appellant is transportation of goods and other activities are incidental to GTA. Therefore, the appellant s activity pre-dominantly is GTA service. This issue has been clarified by the board in Circular No. 186/5/2015 ST dated 05.10.2015 wherein it was clarified in para 3 of the circular :- 3. Goods Transport Agency (GTA) has been defined to mean any person who provides service to a person in relation to transport of goods by road and issues consignment note, by whatever name called. The service provided is a composite service which may include various ancillary services such as loading/ unloading, packing/unpacking, transshipment, temporary storage etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct does not fall under the cargo handling services. 5. We find that in both the cases, the lower appellate authority has held that the activities and operations undertaken by the appellants are covered under the definition of Cargo Handling Agency , as such activities were not mere transportation of goods. She has accordingly held that the service tax is payable by both the appellants and has upheld the demands confirmed by the original authority. 6. We note that in our earlier Order dated 10-8-07 in the case of M/s. ITW India Ltd. v. Commr. of Central Excise Customs, BBSR reported in 2007 (8) S.T.R. 490 (Tri.-Kol.), we had examined at length the scope of cargo handling service as well as the meaning of cargo. We find that in these two cases before us, both the appellants have executed work under a contract with M/s. Mahanadi Coalfields Ltd. for Service Tax Appeal Nos. 25 29/06 movement of coal within mining area. The agreement entered into by the appellants with M/s. Mahanadi Coalfields Ltd. reveals that the work performed by the appellants involved transportation of coal inside the colliery area and mechanical transfer of coal to Tippers at quarry face. The amount received by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the thing handled must be cargo - in the instant case the coal transported by you is not cargo, nor you handle cargo as such but merely transport the same. MCL does not receive from you any service that can be branded as cargo handling service and your request to release payment from our side on account of reimbursement of service tax allegedly paid/payable by you cannot be conceded to. This is however without prejudice to MCL s contractual right/liability regarding sharing tax burden as contained in the agreement referred to hereinabove. 7. As we had noted in the case of M/s. ITW India Ltd. (cited supra), the cargo handling service under Section 65(21) of the Finance Act, 1994, means (i) Loading, unloading, packing or unpacking of cargo, and includes (ii) Cargo handling services provided for freight in special containers or for non-containerised freight, (iii) Services provided by a container freight terminal or any other freight terminal, and (iv) Cargo handling service incidental to freight. 8. We find that the activity undertaken by both the appellants for mechanical transfer of coal from the coal face to tippers and subsequent transportation of the coal within the mining ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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