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2014 (3) TMI 79 - AT - Service TaxClassification of service - cargo handling or site formation and clearance, excavation and earth moving service or mining service - job was clearing the site for mining, excavation of top soil and its dumping at a specified place, removal of the over burden and raising of saleable lignite from Matasukh Mines - period before 16/06/05 and from 16/06/05 to 31/05/07 - Held that:- except for mention of loading of the mined lignite of the desired quantity into the trucks in Clause 4.2.1 (c) of the agreement, there is absolutely no mention of any handling or transportation of coal by the appellant within the mining area. As held by the Tribunal in the case of Sainik Mining & Allied Services Ltd. vs. CCE, CUS & ST, BBSR (2007 (11) TMI 90 - CESTAT, KOLKATA), cargo in commercial parlance means the goods which are to be carried as freight in ships, planes, rail or trucks and cargo handling service is handling of such goods meant for transportation and it is on this basis that the Tribunal in this case held that handling and movement of coal within the mining area is not taxable as cargo handling service under Section 65 (105) (Zr). - service tax demand for the period prior to 16/6/05 is not sustainable at all As regards the service tax demand for the period from 16/6/05 to 31/5/07 - the entire contract has to be treated as a mining contract and not a contract for site formation, clearance, excavation and earth moving. Therefore, for this period also, the appellant’s activity cannot be subjected to service tax under Section 65 (105) (ZZZa). We find that same view has been taken by the Tribunal in an identical issue involved in the case of M. Ramakrishna Reddy vs. CCE & CUS, Tirupathi [2008 (10) TMI 115 - CESTAT, BANGALORE] Moreover, when w.e.f. 01/6/07 the activity of the appellant has been accepted by the Department as mining service, for the period prior to 01/6/07, the same activity cannot be classified as site formation and clearance, excavation and earth moving or as cargo handling service. The service tax demand for the period prior to 01/6/07 and also the penalty under Section 78 to that extent set aside. - Demand for the normal period of limitation and penalty u/s 76 confirmed - Decided partly in favor of assessee.
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