TMI Blog2005 (3) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of the machines nor has it rented out the machine. It is a complete outsider to the main cargo handling activity. It is also not responsible for the handling activity. It supplied the manpower, which render a supportive and ancillary role. The appellant s employees, neither as a group, nor as individual, packs or loads cement. Packing or loading cement is not the job contracted out to the appellant. This position is made clear by the labour contract. The facts and circumstances make it clear that the appellant is not rendering cargo handling service. In the given factual situation, cargo handling cannot take place in the absence of packing machine and conveyer. The appellant has no control on them. The appellant is right in his contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement into bags and the bags get sealed automatically. After this, the bags fall onto the conveyer system which takes these bags to the exit point that goes right into the truck or wagon. At the exit point, the labourers simply give a helping push to the bag whenever necessary, so that it falls in place and the bags are properly stacked. We are enclosing copies of the photographs to show various stages of this process. These would shows that Lafarge India conducts it own packing and loading process in which labourers supplied by the appellants play a very secondary role . 2. During the hearing of the case, appellant has shown, on the computer, the actual packing and loading activity as well as the role played by the labourers supplied by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chanised operations and in these facts and circumstances, the appellant does not fulfil the criterion of being a cargo handling service renderer. 5. Learned Counsel has also pointed out that according to the clarificatory instructions F.No. B11/1/2002-TRU dated 1-8-2002, the appellant s service cannot come within the scheme of cargo handling service. He has referred in particular to paragraphs 3 and 15 of those instructions which are produced below : - 3. The services which are liable to tax under this category are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Well k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services provided by a container 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. Thus, the statute has defined cargo handling service as to mean loading unloading, packing or unpacking of cargo . The definition also states that certain other services remains included. In the present case, the appellant is not rendering any of the services included in terms of definition. Therefore, the question is whether the appellant is loading, unloading, packing or unpacking of cargo in terms of the main clause of the definition. The issue has to be determined in the contract of the packing, unpacking, loadi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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