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TMI Blog2025 (1) TMI 481X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of goods by road. The service recipient is liable to pay service tax on this activity under Reverse Charge Mechanism. Apparently and admittedly M/s. Northern Coalfield Ltd., the service recipient has already discharged the same. These observations are sufficient to hold that the demand for this partial period has rightly been dropped by Commissioner (Appeals) - There is no evidence on record that respondent-assesse is a Goods Transport Agency nor any consignment note is placed on record. Thus in terms of Section 66B, there is no tax liability on the impugned activity even for the post negative period. The demand for this period is also rightly dropped by Commissioner (Appeals). Invocation of extended period of limitation - HELD THAT:- It is observed from the SCN that the demand has been proposed based upon the respondent s own documents. It is also clear that the fact of discharge of the impugned service tax liability by the service recipient/Northern Coalfield Ltd. under Reverse Charge Mechanism was also brought to be notice of the department. There are no act of alleged suppression on part of the respondent-assessee. The department rather has failed to take into considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the proportionate interest and the appropriate penalties. The said proposal was initially confirmed vide Order-in-Original No. 68/2016-17 dated 22.03.2017. The said order has been set aside by Commissioner (Appeals). Being aggrieved of the said order, the department is before this Tribunal 2. We have heard Ms. Jaya Kumari, learned Authorized Representative for the department and Shri A.K. Batra, learned Chartered Accountant for the respondent. 3. Learned Departmental Representative for the department has submitted that the disputed period includes the period from 01.07.2012 to 31.03.2013 i.e. the post negative list period where categorization of services has no relevance for taxability. It is submitted that dropping the demand even for this period denying the impugned activity of the respondent to be that of Cargo Handling Services is apparently wrong finding. The order is liable to be set aside on this ground itself. It is mentioned that the Commissioner (Appeals) has wrongly relied upon the decision of Hon ble Supreme Court in the case of Commissioner of Central Excise, Raipur Vs. Singh Transporters in Civil Appeal No. 7460/2017 wherein it has been held that the transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about charging Sections i.e. 66B and 65B (44) of the Finance Act, 1994 as are relevant for post negative list period, the demand for this period is also liable to be set aside. Otherwise also, the most of the period of demand is beyond the period of limitation. There is no suppression nor any mala fide intent on part of the respondent to evade the payment of tax. The demand for the extended period is therefore liable to be set aside. With these submissions, the order under challenge is prayed to be upheld and appeal is prayed to be dismissed. 5. Having heard the rival contentions and perusing entire records, we observe and hold as follows: 5.1 The period in dispute is April 2008 to March 2013, thus the period w.e.f. July 2012 to March 2013 is the period post introduction of Section 66D (negative list) in the Finance Act, 2012. Vide this amendment the concept of classification of services was done away. Hence, the findings are pre and post negative list period wise are as follows: 6. Pre Negative List Period 6.1 The activity is alleged to be that of Cargo Handling Services. The service is defined under Section 65(23) of Finance Act, 1994 which reads as follows: cargo handling servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ship or aeroplane or vehicles even Railway wagon and transported to another place. Before that it remains Goods . 6.3 It is further observed that the Legislature has drawn clear distinction between the terms Goods and Cargo . The intention of the Legislature can be gathered from definition of different services under the Act itself. Wherever Legislature intended to tax services relating to Goods it has unequivocally stated so and wherever Legislature intended to tax services relating to Cargos , it has used the term Cargo to limit the scope of levy. For instance, under Transport of goods by road services as defined u/s 65(50b), the expression Goods is used while under 'Cargo Handling Services' defined u/s 65(23), the expression Cargo is used which clearly indicates that legislature while bringing the services under the tax net has clearly laid down its scope by deliberately using the expression Cargo and to define the scope of the levy. Undoubtedly, the use of the expression Cargo by the Legislature is a deliberate act with a intention to restrict the scope of the levy only to Cargo Handling Services rendered only by Cargo Handling Agents and not to extend it to goods/m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mere activity of transportation of such cargo since transport service independent of cargo handling is an exception under the scheme of levy by Section 65(23) of the Act. Thus it can be said that loading, unloading, packing or unpacking of cargo and handling of cargo for freight in special containers or non-containerized freight and service provided by container freight terminal or other freight terminal for all modes of transport are subject matter of taxation under the class cargo handling service . That apart, any activity incidental to freight of cargo is also liable to be taxed under such class. Mode of transport is irrelevant for incidence of levy once the service provided meets the test of handling of cargo in the manner envisaged by law. It is also not necessary that the cargo should only be meant for transport either by vessel in ships or aircrafts. Thus we hold that the issue of transportation of goods is different from cargo handlings transportation of coals from the coal mines to the tippers/trucks is no more res integra as it stands decided that the activity is not a Cargo Handling Service but is that of transportation of goods by road. The service recipient is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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