TMI Blog2017 (12) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... vice - once the departments proposal of classification fails entire show cause notice is liable to be quashed. Services involved is correctly classifiable under Site Formation and clearances, excavation and earth moving and demolish service provided for construction of road of National Highway, the same is exempted under N/N. 17/2005-ST dated 7-6-2005. Appeal dismissed - decided against appellant. - ST/86336/13, ST/ORS-92405/17 - A/90717/17/STB - Dated:- 9-11-2017 - Mr. Ramesh Nair, Member ( Judicial ) And Mr. Raju, Member ( Technical ) Shri. M.P. Damle, Asstt. Commissioner(A.R) for the Appellants Shri. H.G. Dharmadhikari, Advocate for the Respondent ORDER Per: Ramesh Nair The brief facts of the case are t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering the facts that- (I) Commissioner(Appeals) failed to appreciate the fact that activities provided by the appellant is composite in nature and Board vide Circular No. 232/2/2006-CX dated 12.11.2007 has clearly issued guidelines which has been elaborately discussed in Para 13.6 of the impugned Order-in-Original, which clearly establishes that the activities performed by the Appellant is covered under the Category of Cargo Handling Services . (II) Commissioner (Appeals) railed to appreciate the facts that the Appellant had tried to prove that their activities were in connection with construction of Road which is exempted service under Notification No.17/2005-ST, dated 07-06-2005 but actually the Work Order mentioned supra did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OTAPL1 No.17/2008 OTAPL No.09/2008 respectively and the matter is still subjudice before the Hon'ble High Court of Odisha. Thus, the issue has not attained finality. 3. Shri. M.P. Damle, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterates the grounds of appeal. 4. On the other hand, Shri. H.G. Dharmadhikari, Ld. Counsel for the Respondent submits that as per the nature of the work awarded to the respondent, it is clear that the same is activity of site formation and clearance, excavation and earth moving service in connection with construction of highway therefore same cannot be classified under Cargo Handling Services. The services carried out by the respondent being under category of site formation, c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... work in brief was submitted as under: The respondent are quarrying, sorting, loading and transporting boulders to OSE Nagpur from Nara Quarry to their crushing plant for their NHAI road project. The scope of the work includes loading and unloading of Rubboles(Boulders) 0 mm to 650 mm from Nara Quarry to M/s. OSE site by Mechanical process. The weighing of boulders shall be done on OSE weighbridge at their site before unloading stockpile or feeding to the crusher. This weightment shall be considered final basis of payment to you. From the above, it is clear that the service being provided is in respect of construction of roads therefore the same is eligible for exemption as per the notification no. 17/05-ST dated 7-6-2005. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant on 21-6-2011 and Appeal is filed in this office on 20-9-2011. The appeal is filed within time under Section 85 of the Finance Act, 1994. As there are strong grounds in favour of the appellant I dispense with pre-deposit and take up the appeal for final disposal. 6. I. find that the Appellant was awarded a contract for by M/s. Shweta Minerals (i)Loading segregating, sizing, stockpiling excavating loading transportation unloading feeding of suitable Rock Boulder of Size up 'to 600 MM into crushing plant at crusher stock yard as directed by OSE(ii) Overburden removal including loading 86 transporting, dozing as per the direction of OSE ii) Soft Rock(Which requires drilling and Blasting).The respondent has confirmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ludes cargo handling service provided for freight in special containers or for non containerized freight, services provided by container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight but does not include handling of export or passenger baggage or mere transportation of goods . From this definition it clear that for taxation under the cargo handling service is that the service provided be relating to cargo handling by cargo handling agency. The service provided should he integrally or inseparably connected with handling of cargo or attributable thereto without being a mere activity of transportation of such cargo. I have examined the contract between Nils Shweta Mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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