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2020 (1) TMI 1450 - CESTAT KOLKATALevy of service tax - cargo handling agency or not - contract for raising, calibration and transportation of iron ore and fines by mechanized means - suppression of facts or not - penalty - HELD THAT:- The activities undertaken by the appellants under the impugned contracts primarily involves excavation and transportation of iron ore subsequent to blasting in the iron ore mines and feeding of iron ore to the crusher plant. The activities incidentally may involve some loading and unloading of iron ore while carrying out the principal activities under the contracts. Such incidental activities of loading and unloading undertaken by the appellants cannot give the entire contracted activities the character of ‘cargo handling services’. The coverage under ‘cargo handling service’ would extend ordinarily to what is commercially known as cargo carried as freight in a ship, airplane, rail or truck. As such, the activities undertaken by the respondents are primarily in the nature of mining activities comprising of excavation, transportation and feeding of iron ores to the crusher plant, etc. and these activities may incidentally involve some loading and unloading. The same cannot however be covered under the category of ‘cargo handling service’ as what is carried cannot be commercially called ‘cargo’ in the facts and circumstances of the case - the definition of ‘cargo handling services’ under the Finance Act, 1994, does not include the kind of activities undertaken by the appellants hence the same are not chargeable to Service Tax. Penalty - HELD THAT:- There is no ingredient of suppression or mis-statement by the appellants regarding the nature of activities undertaken by the appellants and hence the imposition of penalty on the appellant is not at all justified. Appeal allowed - decided in favor of appellant.
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