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2019 (3) TMI 1098 - CESTAT NEW DELHIClassification of services - Cargo handling service or GTA Service? - handling soya seeds, DOC, coal, etc. in the factory premises and for local transport from the factory to Mandideep Railway Station for loading in the racks - whether the entire amount received by the appellant is for the alleged cargo handling service only? Held that:- The contract is for transportation and loading of cargo from factory at Mandideep to railway goods shed. The contract has 13 terms therein. Cumulative reading and the apparent interpretation, to our opinion for these terms is that the contract was entered into with an intention for the products of M/s Bhaskar Exxoils Pvt. Ltd. to be transported from their factory to the railway shed. It is also apparent from the contract that in fact the goods were loaded from the factory into the trucks of the appellant and were directly transferred to the railway wagons except in case of delay where an additional charge of ₹ 1 per bag has been agreed to be paid for the labour charges - Though Ld. DR has laid emphasis on para 9 thereof which reads that the agreed value per metric ton is inclusive of transportation while emphasizing that transportation is not the main activity but we are not convinced with the said submission in the light of the remaining other 12 terms and conditions. Use of word ‘inclusive of transportation’ is opined to be a mere language error. The main activity of the appellant appears to be that of the transportation - thus, the services rendered by the appellant do not amount to cargo handling service. Whether the entire amount received by the appellant is for the alleged cargo handling service only? - Held that:- Apparently and admittedly, the value relied upon by the Department does not merely include the transport/ freight charges rather in addition includes charges as that of freight on DOC (rate), freight on soya seed purchased (agricultural produce). Further, it is observed that these freights are for the movement of the soya seed, produced, within the factory premises. The law has already been settled that the movement of goods within the factory premises cannot be classified as the service of cargo handling. Inclusion of all such prices in the impugned demand is therefore highly unjustified on the part of the adjudicating authorities. Time Limitation - Held that:- The demand is otherwise observed as being barred by time except for the one year thereof, period of demand being 2007-08 to 2011-12 and SCN being of October 2012 0 There is no apparent evasion on the part of the appellant. The taxable service stands already been paid under reverse charge mechanism by M/s. Bhaskar Exxoils Pvt. Ltd., the recipient of transport service - Seeing from this angle as well, the demand confirmed is not sustainable. Appeal allowed - decided in favor of appellant.
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