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2023 (5) TMI 337 - AT - Service TaxClassification of Services - Cargo Handling Services or Goods Transport Agency service - transporting coal in tipping trucks including loading of coal into said trucks and in some cases loading into Contractor’s tipping trucks by the contractor’s pay loaders - HELD THAT:- ‘Cargo Handling Service’ has not been defined in the Act but is defined in Circular No. B11/1/2002-TRU, dated 01-08-2002 as the services of transporting coupled with loading, unloading, packing, unpacking can be called as ‘Cargo Handling Service’ if those are done by the authorities as that of Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations etc. Apparently and admittedly the appellant herein is none of these kinds of companies. Hon’ble Supreme Court also while discussing the case of THE DEPUTY COMMISSIONER, CENTRAL EXCISE & ANOTHER VERSUS SUSHIL & COMPANY [2016 (4) TMI 987 - SUPREME COURT] has appreciated the said circular holding that Well known examples of cargo handing service are services provided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. The Hon’ble Supreme Court has accepted Hon’ble High Court interpretation to the Entry viz. ‘Cargo Handling Service’ wherein it was observed that there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and the service provider must independently be involved in loading unloading or packing-unpacking of the cargo. The decision of the Hon’ble Supreme Court in the case of SINGH TRANSPORTERS VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [2012 (7) TMI 566 - CESTAT, NEW DELHI] squarely covers this issue - The issue involved therein was whether the coal transported from pitheads of the mines to the railway sidings would fall within the taxable service as defined under Section 65(105)(zzzy). Though the service in question in the said case was whether it was a mining service but the outcome is relevant for the present adjudication wherein it was held that the aforementioned activity is an activity as that of transportation of goods. Larger Bench decision of the Tribunal rendered in the case of ATMA STEELS PVT. LTD. AND OTHERS VERSUS COLLECTOR OF CENTRAL EXCISE, CHANDIGARH AND OTHERS [1984 (6) TMI 60 - CEGAT, NEW DELHI] it was held that once the provisions has been changed, then the existing provisions at the time of issue of show cause notice should be applicable and not the earlier provisions. It is found that in a catena of decisions it has been held the demand can be confirmed only as per the provisions that exist at that time. Hence, the show cause notice issued and adjudicated on the basis of the provisions existing during the period prior to the disputed period, cannot be upheld - appeal allowed.
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