TMI Blog2015 (6) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. - same relates to mining of sand from the riverbed and transporting the same to the Western Coalfield's mining area. Sand is a minor mineral and therefore, mining of sand from riverbed comes within the definition of mining service and will not come within the scope of "Cargo Handing Service" as the main activities is of mining and therefore, demand of Service Tax on mining of sand is not sustainable in law. Activity of loading/unloading of coal by engaging tippers would come within the purview of the "Cargo Handling Service" and the appellant would be liable to discharge Service Tax liability accordingly. As regards the mining of sand from the riverbed the said activity would come within the scope of mining service and not under "Cargo Handling Service". Since there was a confusion about the scope of levy, the extended period of time is not invocable in the present case and accordingly, the demand should be restricted to the normal period of limitation. The appellant would be liable to pay interest on the Service Tax demand payable for the normal period of limitation. Since the dispute relates to the classification of service, imposition of penalties are not warranted. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of 98, 40, 392.28 MTs of coal and received loading charges amounting to ₹ 8,28,70,819.64. The department was of the view that the activity of loading of coal into the tippers would come within the purview of Cargo Handling Service as defined in Section 65(23) read with Section 65(105)(zr) of the Finance Act, 1994. Accordingly, a show cause notice dated 19-10-2007, was issued demanding Service Tax of ₹ 84,88,665/- for the period 16-8-2002 to 31-3-2007 along with interest thereon and also proposing penal action. The said notice was adjudicated by the impugned order wherein the duty demands were confirmed along with interest and penalties were imposed. 3. The learned Counsel for the appellant submits that the work involved was a composite one, namely, hiring of pay-loaders and tippers and loading of coal into tippers and the transportation from pit-heads to crushing sites and unloading at the crushing sites. The loading of coal into the tippers was incidental to the transportation of coal from the pit-heads to the crushing sites where the coal was further processed. Since the activity undertaken is a composite one and the main activity is transportation, there ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal in the case of Singh Transporters Vs. CCE - 2012 (27) STR 488 (Tri-Del) in support of the contention that extended period of time could not be invoked when there was confusion regarding the scope of Cargo Handling Service . In view of the above, it is pleaded that the impugned demands be set aside and the appeals allowed. 4. The learned Additional Commissioner (AR) appearing for the Revenue on the other hand contends that the work orders placed on the appellant envisaged two activities to be undertaken by the appellants. One activity is loading of coal into the tippers and the consideration was paid per MT of coal loaded. Another activity is transportation of coal from pit-heads to the stockyards/crusher site in the mine area for which another rate has been prescribed. On this part of the consideration WCL has discharged the liability. However, the present demand is confined to the activity of loading undertaken by the appellant and the demand is restricted to charges collected for loading alone. Since the loading of coal amounts to Cargo Handling Service as defined in law, the present demands are sustainable. Inasmuch as the appellant has not obtained the registrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The statute does not define what cargo is; therefore, the dictionary meaning of the term has to be taken for deciding what cargo is. According to the Blacksmith dictionary, the term cargo means, the load (that is freight) of a vessel, train, truck, aeroplane or other carrier. Thus any goods which are meant for transportation from one place to another by any mode of transport could be considered as cargo. Therefore, the mined coal at pit-heads required to be transported to stockyards or crushing sites from the mine area can be certainly considered as cargo. Therefore, the activity undertaken by the appellant clearly falls within the definition of Cargo Handling Service as defined in law. This issue was examined at great length in the case of Gangadhar Bulk Movers (P.) Ltd's case (supra) wherein also the issue related to classification of service in respect of loading of coal on tippers by hiring pay-loaders and transporting from one place to another within the mining area. After considering the various decisions including those involved in the Modi Construction Co. and Sainik Mining Allied Services Ltd's case (supra), this Tribunal came to the conclusion that the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, the invocation of extended period of time and imposition of penalties on the appellant are not clearly justified in the facts of the case. 5.5 In view of the factual and legal matrix as discussed above, we hold that the activity of loading/unloading of coal by engaging tippers would come within the purview of the Cargo Handling Service and the appellant would be liable to discharge Service Tax liability accordingly. As regards the mining of sand from the riverbed the said activity would come within the scope of mining service and not under Cargo Handling Service . Since there was a confusion about the scope of levy, the extended period of time is not invocable in the present case and accordingly, the demand should be restricted to the normal period of limitation. The appellant would be liable to pay interest on the Service Tax demand payable for the normal period of limitation. Since the dispute relates to the classification of service, imposition of penalties are not warranted. Therefore, the matter is remanded to the adjudicating authority only for the limited purpose of quantification of the Service Tax demand for the normal period of limitation and for excluding the s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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