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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 ..... he case of the department is that the appellant's service does not fall under conventional transportation services but instead falls under the category of cargo handling services. Thus, the service tax demanded on cargo handling services has been confirmed. 2. Shri Kaushal Rathi, Learned Chartered Accountant appearing on behalf of the appellant at the outset submits that the major activity of the appellant is to transport the goods from railway siding to the factory of M/s. JK Paper Ltd and transportation of coal ash from power house of JK Paper Ltd to stone quarry, therefore, the service is pre-dominantly GTA service for which the service recipient is paying the service tax on the abated value of 25% of transportation charges. Therefore, the appellant is not liable to pay the service tax. He relied on the Board Circular No. 186/5/2015-ST dated 05.10.2015 and Board Circular No. 104/07/2008-ST dated 06.08.2008. He also placed reliance on the following judgments : - (a) Sainik Mining & Allied Services Limited - 2008 (9) STR 531 (Tri. Kolkata) (b) Commr. Of C.Ex. & Cus , Bhubaneswar-II vs. B.K Thakkar - 2008 (9) STR 542 (Tri. Kolkata) (c) Commr. OF C. Ex., Jaipur-I vs. Giriraj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by GTA himself or may be sub-contracted by the GTA. In either case, 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 ancillary services provided in the course of transportation of goods by road. These services are not provided as independent activities but are the means for successful provision of the principal service, namely, the transportation of goods by road." 4.2 Further this issue has been considered in various judgments. Some of the judgments are reproduced below:- (a) Sainik Mining & Allied Services Limited - 2008 (9) STR 531 (Tri. Kolkata) : "3. In the case of Service Tax Appeal No. 25/06, the appellants, M/s. Sainik Mining & Allied Services Ltd. worked inside the mining area as per an agreement entered into with M/s. Mahanadi Coalfields Ltd. 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 authorities below have held that the appellants have provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants involved transportation of coal inside the colliery area and mechanical transfer of coal to Tippers at quarry face. The amount received by the appellants also includes the cost of operation of machinery involved in the mechanical transfer of coal. The appellants have challenged the duty demand on the ground that the mechanical transfer of coal to Tippers and transportation of coal within colliery/mining area on behalf of their principals do not amount to cargo handling. They have also contended that M/s. Mahanadi Coalfields Ltd. (M/s. MCL) is a Central Government Undertaking and it had after due examination clarified to them that the activities undertaken do not amount to cargo handing, nor M/s. MCL has paid any service tax to the appellants. It is their contention that the entire area of operation constitutes mine as defined under the Mines Act and includes the area from the coal face to the railway siding, within which, the appellants have moved the coal. The appellants have also referred to the following clarification given by M/s. MCL : 'The work of Coal Transportation Contact between yourself and MCL bearing LOI No. MCL/SBP/CGM(CMS)/96/424, dated 7-8-1996 constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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 area, does not come under the purview of cargo handing service. The dominant activities undertaken by the appellants under the contract in question are primarily the movement of coal within mining area and transfer of coal from the coal face to the tippers, if at all, includes loading and unloading which are merely incidental. Cargo in commercial parlance has a definite connotation which is carried as freight in a ship, plane, rail or truck and the activities undertaken by the appellants in terms of the contracts on behalf of M/s. MCL to move coal within mining area do not fall in the category of cargo handling service. Moreover, the activities undertaken are principally the transportation of coal within mining area and hence, the gross amounts received for the same cannot be taxed under the category of cargo handling service. We have, therefore, no hesitation in our mind to hold that the definition of cargo handling service under the Finance Act, 1994, does not include the kind of activities u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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