TMI Blog2019 (3) TMI 1098X X X X Extracts X X X X X X X X Extracts X X X X ..... eof 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 hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and is in the business of transporting goods for the various people without even issuing the consignment notes. It is impressed upon that the activity was merely transportation of the goods which is specifically excluded from the definition of cargo handling. Otherwise also, the transportation was of the export cargo which also stands excluded from being called as a cargo handling. In addition, it is submitted that the demand confirmed has covered the entire payment received by the appellant which includes not merely the transportation charges but also the charges for handling soya seeds, the agricultural produce, and for the transfer thereof even within the factory. All those charges have also been considered as the charges towards the transportation for cargo handling. The proposal and the confirmation thereof is, therefore, alleged as inappropriate and unjustifiable. The Order under challenge is accordingly prayed to be set aside and Appeal is prayed to be allowed. 4. While rebutting these arguments, Ld. DR has impressed upon the contract as entered into by the appellant, emphasizing that the contract was mainly for the loading of the cargo. Para 9 thereof has been made ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rail, ship or aircraft. The notice has undisputedly undertaken the activity of loading and unloading the goods meant to be transported. The perusal thereof makes it clear that for anything to be defined as cargo handling service, it should be a bundle of activities as that of loading, unloading, packing or unpacking of the cargo alongwith providing for freight with or without the containers. The definition itself has an exclusion clause for excluding handling of export cargo or passenger baggage. Even mere transportation of goods is also specifically excluded. 6. The main contention of the appellant is that the activity rendered by him is mainly of transportation that too not even being a GTA. It has been submitted that otherwise also, the liability for transportation has been discharged by M/s. Bhaskar Exxoils Pvt. Ltd., the recipient of the services, under reverse charge mechanism. The same was informed at the time of submitting reply to the SCN vide letter dated 13.03.2018. We observe that the said submission in the said reply has nowhere otherwise been denied by the Department. 7. To appreciate the main contention of the appellant, we look into the contract. The openin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied. Obviously the component for transportation will depend on the distance of transportation. But the main activities are that of mining and transportation. By now it is well settled that handling or transportation of goods within a factory or mining area does not amount to cargo handling because at that stage the goods are not cargo within the common meaning of the word. AS per records of the case, on the entire component of transportation the receiver of the service has already paid service tax under the category of services of transportation of goods by road. No separate component of compensation for loading and unloading is seen from the contract. IN this respect, the contract under consideration is different from the contract considered in the case of Gajanand Agarwal where there was a rate for loading of railway wagons based on the number of wagons loaded. In the contracts under consideration there is a predominant activity of transportation. The cargo handling activity is incidental to transportation. Revenue s attempt to convert such services into cargo handling service to deny the abatement available to value of services of transportation of goods by road is too farfetche ..... X X X X Extracts X X X X X X X X Extracts X X X X
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