TMI Blog2017 (11) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax under the category of supply of tangible goods, that too only w.e.f. 16.5.2008 - decided against Revenue. Cargo Handling Service - case of Revenue is that nature of activity carried out in the mining area of ACL was transportation of limestone and rejects with the help of dippers and dumpers - Held that: - The Tribunal in the case of Sainik Mining and Allied Services Vs. CCE [2007 (11) TMI 90 - CESTAT, KOLKATA] has held that Activity of 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 - demand withheld - decided against Revenue. Appeal allowed - decided in favor of appellant. - ST/1693 & 1701/2011-CU[DB] - ST/A/57485-57486/2017-CU[DB] - Dated:- 31-10-2017 - Mr. (Dr.) Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Shri Bipin Garg, Advocate for the appellant Shri Amresh Jain, DR for the respondent ORDER Per V. Padmanabhan These appeals have been filed by M/s Shree Logistics (Assessee) as well as revenue against the Order-in-Original number 13/2011 dated 29.7.2011. For the sake of convenience, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the demand is not sustainable. ii) On behalf of the assessee, he submitted that the service tax demand amounting to ₹ 1.27 crore which has been confirmed in the impugned order is not being challenged by them. iii) The service tax demand which is confirmed w.e.f. 16.5.2008 has also included the value of free supply of diesel. It is fairly well settled through various decisions of the Tribunal as well as courts that there is no basis in law for including the value of material supplied free of charge. Hence he submitted that such demands may be set-aside. iv) He also raised the ground of time bar. 6. Sh. Amresh Jain, Ld. DR summarised the grounds of the Revenue s appeal as follows: i) The adjudicating authority has dropped the demand for the period prior to 16.5.2008 on the ground that the service of supply of tangible goods was introduced only from that date. However, revenue is of the view that for the period prior to this date, the services rendered by the assessee would be liable to service tax under the category of site formation and excavation service. ii) In respect of the contract executed at for M/s MCPL, the adjudicating authority has recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount charged is unsustainable. When the demand itself is not sustainable, the question of any penalty simply does not arise. Similar views were expressed in the following cases: (i) Bhayana Builders (P) Ltd. Vs. CCE, Raipur 2013 (32) STR 49 (Tri.-Delhi.) (ii) Karamjeet Singh Co. Ltd. Vs. CCE, Raipur 2013 (32) STR 40 (Tri.-Delhi) (iii) CCE, Pune-II Vs. V.B. Patil Kanwade Associates 2014-TIOL-26-CESTAT-MUM (iv) Baliram Gopal Mahajan Vs. CCE Nashik 2014-TIOL-90-CESTAT-MUM (v)S.V. Engineering Constructions Vs. CCE, Guntur Final Order No. 27220/2013 dated 31.12.2013 2016 (46) STR 589 (Tri.-Hyd.) (vi) ATR Constructions Pvt. Ltd. Vs. CCE, Ghaziabad 2014-VIL-48-CESTAT-DEL-ST = 2014 (35) STR 92 (Tri.-Del.). 6. In the light of the well settled legal position above, we find no reason to interfere with the impugned order. The same is hereby sustained along with reasons mentioned therein. 8. By following the earlier decision, we are of the view that there is no justification for adding the value of free supply diesel for purposes of levy of service tax. 9. Next we consider the service tax demand arising out of the assessee s c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble goods service. In any case we note that the rate of service tax is one and the same for both services. Hence it cannot be said that the impugned order has travelled beyond the SCN. Consequently we dismiss the appeal of the assessee on this ground. 13. The SCN has also proposed demand of service tax under the category of cargo handling service for a part of the work executed by the assessee for M/s ACL. In the impugned order such demands were dropped. Revenue has appealed against this. The adjudicating authority has recorded in para 25 of the impugned order that the nature of activity carried out in the mining area of ACL was transportation of limestone and rejects with the help of dippers and dumpers. He has taken the view that the nature of activity is nothing but transportation of goods within the mine and cannot be covered under cargo handling service. We note that this issue is no more res integra and stands settled in favour of the assessee. The Tribunal in the case of Sainik Mining and Allied Services Vs. CCE - 2008 (9) STR 531 (Tri) has observed as follows: 8. We find that the activity undertaken by both the appellants for mechanical transfer of coal from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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