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2021 (3) TMI 519 - AT - Service TaxRecovery of Differential Service Tax - cargo handling service - supply of river sand - transportation of limestone from mines - commercial and industrial construction service - Revenue is of the view that proper amount of service tax not paid by assessee in respect of disputed service. Commercial and Industrial Construction Service - demand made on an activity which admittedly involved both supply of goods and rendering services - HELD THAT:- It has now been well settled by the Hon’ble Supreme Court in the case of Larsen & Toubro Ltd. [2015 (8) TMI 749 - SUPREME COURT] that “works contract service” is separate specie of contract known to commerce and it cannot be equated either with a contract for sale of goods or a contract for supply of services simplicitor. Service tax can only be demanded on Works Contract services after the introduction of a charge on works contract service and not under any other head either before the introduction of the service or thereafter - Even if they had not fulfilled the conditions, there is no case for the Department to charge service tax on this service under any other head - the demand of service tax under the head of Commercial and Industrial Construction Service needs to be set aside. Cargo handling service - supply of river sand - HELD THAT:- The first contract is supply of river sand; it is not for loading or unloading any cargo. Needless to say that if somebody has to supply river sand it has to loaded into the truck and unloaded it at the customer’s destination. The nature of the contract remains to be one of supply of river sand and it cannot change into a contract for some other service. Cargo handling service - transportation of limestone from mines - HELD THAT:- The contract is evidently for transportation of goods and the appellant has been discharging service tax under Goods Transport Agency service. Merely because transportation also requires the appellant to load and unload goods, it cannot be said that the appellant has performed cargo handling service - This view with respect to the demand for an earlier period for these services was already taken by this Bench in M/S SHREE MOHANGARH CONSTRUCTION CO. JAISALMER VERSUS COMMISSIONER OF CENTRAL EXCISE JAIPUR II [2019 (3) TMI 112 - CESTAT NEW DELHI] where it was held that The purchase order clearly shows that the contract was for supply of material and can by no stretch of imagination, be considered as for providing Cargo Handling Service and no service tax is payable for this activity under the category of Cargo Handling Service - thus the demand is set aside. Supply of tangible goods service - HELD THAT:- The appellant is not contesting this amount and it needs to be upheld. Interest, if any, payable under Section 75 of the Finance Act, 1994 also needs to be paid on this amount. As bulk of the demands have already been set aside, invoking the powers under Section 80, the penalty imposed under Section 76 is set aside. Appeal allowed in part.
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