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2017 (9) TMI 1384 - AT - Service TaxCargo Handling Services - case of assessee is that it was not a cargo handler but it was a mere transporter of luggage of the passengers delivered at the checking point or collected from different points engaging contractors - Board s Circular No. 80/2004 dated 17.09.2004. Held that: - As per the provisions of sub-section (23) of section 65 of the Finance Act, 1994, Cargo Handling Service means loading, unloading, packing or un-packing of cargo and includes Cargo Handling Services provided for freight in special containers or for non-containerized freight, services provided by a 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 cargo or passenger baggage or mere transportation of goods - From the definition of Cargo Handling Service, what emerges is that mere transportation of cargo is excluded from that definition. Every activity of service of transportation of goods will surely include some manner of loading and unloading of the goods. It is further seen that the assessee themselves do not carry out even these peripheral activities of loading or unloading. The same is carried out instead by independent contractors. Throughout this exercise due carrier charges are collected by the appellants from the clients to defray the cost of carting and x-ray of cargo paid to third parties. This is just a reimbursement of convenience for all parties involved to ensure seamless, prompt and timely services to the clients. The activities of the assessee herein would definitely fall within the ambit of the said service, namely, "Transportation of Goods by Air" introduced w.e.f 10.09.2004. However, for the prior period (16.08.2002 to 09.09.2004), the department is seeking to bring the same activities under the fold of cargo handling service. This, in our considered opinion, is not just or fair. Law is well settled that when a new entry is brought under the levy of service tax, the same activity cannot be subjected to levy under an existing entry, unless the new entry has been specifically carved out of the earlier one. This is certainly not the case here. In a recent decision, in the case of United Shippers Ltd. Vs Commissioner of Central Excise, Thane-II [2014 (12) TMI 502 - CESTAT MUMBAI] the Tribunal to held that transport of coastal goods cannot be taxed under categories of Cargo Handling Service. The services provided by the assessee cannot be brought under the ambit of Cargo Handling Services - demand set aside - appeal allowed - decided in favor of appellant.
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