TMI Blog2013 (6) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... o manual labour is involved in loading and unloading is not factually correct and is contrary to terms and conditions of work order. Moreover, the definition of cargo handling service place no restriction on loading or unloading by manual or mechanical method. It is pertinent that loading and unloading are not incidental to transportation in this case, since for transportation, there is a separate work order, which is not the subject matter of this case. It is also pertinent that once the activity carried out, is found to be loading and unloading of cargo, such activity is clearly covered under the category of cargo handling service. The cargo is not only goods transported by a vessel or by aircraft, but also goods transported by motor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred an appeal before Commissioner (Appeal) who vide impugned order allowed their appeal after setting aside the Order in Original. Revenue has challenged the impugned order in the present appeal. 3. Ld. DR appearing for the Revenue submits that Cargo Handling Service is defined under Section 65(23) of the Finance Act and taxable service is defined under 105 (Zr) of the Act. He submits that respondent entered into an agreement with SECL for loading of coal into tipper trucks by using pay-loaders for transportation Ld. DR also relies on Board s Circular 232/2/2006 CX-4 dated 12.11.2007. He relies on the decision of Orissa High Court in case of Coal Carriers reported in 2011(24) STR 395 (Ori.) and Tribunal decision in case of Gangadher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... include handling of export cargo or passenger baggage or mere transportation of goods" There is no dispute that respondent is engaged in loading/unloading/handling of coal into tipper trucks and its transportation from coal face surfaces to coal stock yard at Baroud (with in mines). Respondent is contesting the levy of service tax under Cargo Handling Services as Coal in this case is not cargo. 6. We find that in the case of Coal Carriers Vs. Commissioner of Central Excise Bhubaneswar 2011(24) STR 395 (Ori), Hon ble High Court of Orissa has examined the difference between good and cargo and in para 17 and 18 of the judgement the court held as under: 17. The grounds of attack in support of contentions that the CESTAT filed to apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods transported by a vessel. Air plane or vehicle; freight-Black s Law Dictionary. vi Ships Load-Webster s New Dictionary Thesaurus. vii Cargo is the goods or merchandise conveyed in a ship, aeroplane or vehicle-Mitra s Legal Commercial Dictionary Edition. 18. As per the aforesaid dictionary meanings, goods become Cargo only after loading into the Railway Wagon/truck/tippers and not before. As per the dictionary meanings the use of the expression load, ship s load, carried, Carrying, transported clearly shows that it is in past tense or present perfect tense which dearly indicates that goods becomes Cargo only after it is loaded or transported. Before that it remains Goods. The court has further held is para 22 of the Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of coal mines and has held as under: 6.4 As already discussed, the issue relates to job for loading and unloading. The loading of coal is done on tippers by hiring pay-loaders and the tippers transport the coal from one place within the mining area to another place and unload it there. As regard the contention of the Appellants that no manual labour is involved in loading and unloading, the contention is not factually correct and is contrary to terms and conditions of work order. Moreover, the definition of cargo handling service place no restriction on loading or unloading by manual or mechanical method. It is pertinent that loading and unloading are not incidental to transportation in this case, since for transportation, there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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