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TMI Blog2013 (6) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... rough sea through ships. The said clinker is unloaded from the ships at the jetty and thereafter transported to their factory by availing services of transporters, namely, New Konkan Transport and M/s. Yashashree Transport. The appellant did not discharge service tax liability under the category of GTA service and accordingly a show cause notice dated 11/03/2010 was issued demanding service tax of Rs. 13,51,518/- along with interest. The notice was adjudicated and the demand was confirmed and equivalent amount of penalty under Section 78 and penalties under Section 76 and 77 of the Finance Act, 1994 were also imposed. The appellant preferred an appeal before the lower appellate authority who upheld the service tax demand along with interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e', she refers to the work order given by the appellant to the transporters which indicates that the order is for loading and transporting of clinkers. The rate for loading is 40 paise per ton whereas transportation charges are Rs. 28.08 per ton. Thus, it is clear that transportation is the main activity and loading is only incidental or ancillary to the transportation work. Therefore, the demand for service under GTA service is correct in law. With regards to the argument that the appellant is eligible for benefit of Notification No. 34/2004-ST, she points out that this matter has been considered by the lower authorities and has been rejected on the ground that the said exemption applies to transporters who discharge the service tax liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal and, therefore, the predominant and essential nature of service is transportation and not 'Cargo Handling'. Accordingly, we reject the contention of the appellant in this regard. Lastly, with respect to the benefit of Notification No. 34/2004-ST, the said Notification applies when the service tax liability is discharged by the transporters themselves and the transportation charges for the individual consignments is less than Rs. 750/-. In the present case, the agreement is not for transportation of individual consignments but for transportation of 90,000 tonnes of cargo over a period of time and thus, there is no individual consignment for transportation of which, the amount is paid. In view of this the appellant does not appear to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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