TMI Blog2008 (6) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... they are primarily engaged in the business of Air transportation of passengers and goods and cannot be said to be covered by the definition of the Cargo Handling Agents. They have engaged various agents, who book the cargo and the services provided by them are restricted to transportation of cargo from source location to its air cargo station at destination location. It was specifically pleaded that the service entry 'Transport of goods by Air was introduced with effect from 10.9.04 without making any changes in the previous entries, by itself shows that they are covered by the new entry with effect from the said date and are required to pay the service tax from the date onwards. (b) The show cause notice was adjudicated by the Deputy Commissioner, who accepted the appellant's stand that they cannot be held liable to tax under the category of Cargo Handling Services, and dropped the demand against them. The said order of Deputy Commissioner was reviewed by the Commissioner by issuing show cause notice and stands reversed by the Commissioner vide his impugned order. Hence the present appeal. 2. The appellant raised the following submissions before the Commissioner , w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e collected as per IATA regulations. These regulations prove beyond any realm of doubt that these charges are not towards any cargo handling service, hence the facts have been grossly misinterpreted to the effect that Jet Airways provides cargo handling services. (d) They further stated as per definition [under Section 65(23)] it self categorically excludes ' mere transportation of cargo' from its purview. Jet Airways undertakes only the transportation of cargo. Every transporter has to load the cargo on the transport vehicle at the starting point of journey and unload it at the destination point, either by itself or some third parties may do it on behalf of the transporters/customers . If one holds that every transporter handles the cargo while loading and unloading at the beginning of journey and destination , then the term 'mere transportation of goods' becomes redundant. One cannot imagine mere transportation of goods without entailing loading or unloading activity. (e) They give the reference of Circular No.F.No.B-11/1/2002-TRU dated August, 1, 2002, seek to clarify the scope of services covered under the category of cargo handling service'. It mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (155) ELT 457 and confirmed by the Hon'ble Supreme Court reported in 2004 (170) ELT A 181 (SC). 3. The Commissioner vide his impugned order did not accept the above contentions of the appellant and confirmed the demand against them along with imposition of penalty and interest under Section 75 of the Finance Act, 1994. 4. After hearing both sides, we find that the appellant is admittedly an Airline engaged in the business of transportation of passenger and 'cargo. For the said purpose, the appellant takes booking of the cargo which is to be transported either by himself at its booking office or through IATA agents appointed at various locations all over the country. The cargo booked by the cargo agents are directly transported by the cargo agents to the warehouse at the Airport for uplift to the destination through the Airlines of the appellants. The loading/unloading activity is done by M/s Philipson Corporation in terms of agreement entered into between the two. The cargo which is unloaded at the destination is transported to warehouse of the appellant and the consignee/agent of the consignor collect the cargo from the warehouse of the appellant. The appellant neit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the said agent, who deduct their commission and pay the balance to the appellant. The said finding of fact does not stand rebutted by the revenue. It is also seen that where cargo is directly booked by the airline, they collect charges from the customer directly. It stands correctly held by the Deputy Commissioner that such services cannot be held to be cargo handling services. As rightly observed by the Deputy Commissioner , the primary duty of every transport operator i.e. road, rail or airport to provide facilities of packing/unpacking, loading/unloading of goods to the customer for promotion of business, and if all these services are covered under the category of 'cargo handling services, it will create a preposterous situation for the department, where each and every transport operator such as Railways, Roadways would be covered under cargo handling services and the new services of transport of goods by the Air or Road will become redundant as transport of goods cannot be envisaged without loading/unloading. 6. We also further note that the Board circular issued by F.No.B2/8/2004-TRU dated 10.9.04 in the case of transport of goods by air services explains - In add ..... X X X X Extracts X X X X X X X X Extracts X X X X
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