TMI Blog2009 (1) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... by them are not covered - as it is a question of interpretation of law and there can be no question of suppression - no justification for invoking extended period of limitation - ST/411/2007-ST - ST/19/2009(PB) - Dated:- 7-1-2009 - S/Shri M. Veeraiyan, Member (T) and P.K. Das, Member (J) Shri S.K. Pahwa, Advocate, for the Appellant. Shri Sunil Kumar, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)].- This appeal is against the order of the Commissioner No. 04/Commr /ST/ IND/2007 dated 27-4-2007. 2. Heard both sides. 3. Relevant facts, in brief, are as follows :- (a) The appellants had entered into a contract with Sanjay Gandhi Thermal Power Station, Birsinghpur for handling work relating to unl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2 Kms. Lead. 30,000 (Thirty Thousand MT) 21.40 (Rs. Twenty One Forty Paise) 6,42,000/- (Rs. Six Lakhs Forty Two Thousand only) Total contract value Rs. 2,75,52,000-00 Rs. Two Crores Seventy Five Lakhs Fifty Two Thousand only (c) The Commissioner has held that the work handled by them falls under the category of Cargo Handling Services and demanded service tax amounting to Rs. 63,77,374/- relating to the period 21-8-2002 to 2-5-2006 in pursuance of show cause notice dated 18-10-2006. He also imposed penalties under various sections of the Finance Act. 3.1 Learned Advocate took us through various clauses of the agreement. He also produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th examples. 4. Learned D.R. reiterates the findings of the Commissioner. He drew our attention to the provisions of contract and submitted that the activities undertaken by the appellants come under cargo handling services. The decision in the case of S.B. Construction Co. relates to a situation where there is only mechanical handling of the cargo and hence not applicable to the facts of the present case. Learned D.R. relied on the decision of the Tribunal in the case of Gajanand Agarwal Ors. v. Commissioner of Central Excise Customs, BBSR, reported in 2008-TIOL-2076-CESTAT-KOL wherein in similar situation relating to loading of coal, the activities have been considered as cargo handling services. 5.1 We have carefully co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants therein were loading coal to the wagon by providing pay loaders. The Tribunal has, in the said case, held as under:- Combined reading of provisions of section 65(105)(zr) and 65(23) of the Act throw light that cargo handling agencies are taxable entities. Cargo handling service provided by such entities attract the levy service tax. Section 65(23) has a wide amplitude and has brought all like nature activities of its fold expressly and by inclusion of such like nature activities under the class 'cargo handling services'. However classification of service under this category is subject to two exceptions/exclusions: viz.,: (1) handling of export cargo of passenger baggage and (2) mere transportation of goods. These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the CBEC also supports the petitioner's contention. It clearly appears that the Service tax has been levied under the 'Cargo Handling', on such services which undertakes the activities of packing, unpacking, loading, unloading of goods to be transported by any means of transportation namely truck, rail, ship or air craft. In the instant case the service provided by the petitioner Firm under the contract is distinct i.e. transporting coal from wagons to Thermal Power Station by conveyor belt and not by any means of transportation. Thus we are of the view that the service rendered by the petitioner under the subject contract does not fall under the ambit of Cargo Handling Services and as such it is not liable to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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