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The Commissioner of Service Tax, Mumbai-I Versus M/s. Shah Coal Pvt. Ltd.

2015 (7) TMI 856 - BOMBAY HIGH COURT

Classification of service - Clearing and forwarding agent service - whether the services were liable to service tax under the provisions of the Act - Held that:- Assessee is engaged in the business of trading in coal, transportation of coal by road and supervision of coal loading. In the order of the Commissioner as also in the Tribunal's order, it is recorded that the appellant entered into a contract with M/s. Ambuja Cement Limited for movement of coal from various collieries to the latter's p .....

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ipin Kumar Jain with Mr Prabhakar K Shetty ORDER P.C. 1. We have heard both sides. This is an appeal of the Revenue directed against the order passed by the Customs Excise & Service Tax Appellate Tribunal, West Zonal Bench, Mumbai, dated 26th June, 2013 in Appeal No. ST/65/2007. 2. The argument of Mr. Jetly appearing on behalf of the Revenue in support of this appeal is that the Tribunal's order upholds the order of the Commissioner of Service Tax, Mumbai (order-in-original dated 17th Ja .....

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our attention is invited to the definition of the term "taxable service" and particularly the part where it is a service rendered to a client by a clearing and forwarding agent in relation to clearing and forwarding operations in any manner. Mr. Jetly would submit that section 65(105)(j) is the definition of the term "taxable service" and in relation to clearing and forwarding of goods. The term "clearing and forwarding agent" has also been defined in the Finance A .....

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ortation of coal by road and supervision of coal loading. In these circumstances, Mr. Jetly would submit that this appeal raises substantial questions of law. 4. On the other hand, Mr. Jain appearing on behalf of the assessee relied upon a recent pronouncement of the Hon'ble Supreme Court of India in the case of M/s. Coal Handlers Private Limited vs. Commissioner of Central Excise, Range Kolkatta-I, Civil Appeal No.7215 of 2004 decided on 5th May, 2015. Mr. Jain would submit that this judgme .....

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ng in coal, transportation of coal by road and supervision of coal loading. In the order of the Commissioner as also in the Tribunal's order, it is recorded that the appellant entered into a contract with M/s. Ambuja Cement Limited for movement of coal from various collieries to the latter's plants. The main activity undertaken by the appellant included supervision of coal loading and transportation of coal by road. The Department was of the view that the appellant was rendering services .....

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of India 2010 (20) Service Tax Reporter Pg. 3, the Calcutta High Court held that the activity of supervision and loading of coal would not come under the category of a 'Clearing and Forwarding Agent's service', but might merit classification under 'Business Auxiliary Services'. There was another decision of the Tribunal in the case of Coal Handlers Pvt. Ltd. and which was based on the earlier decision in the case of Prabhat Zarda Factory Pvt. Ltd. v. Commissioner 2002 (145) .....

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ng of coal, then, it does not come under the category of clearing and forwarding service. 9. Mr. Jetly would submit that paragraphs 11 and 12 of the Hon'ble Supreme Court's decision would support Revenue's case. The Revenue had found that the Coal Handlers Pvt. Ltd. and the present assessee had detailed correspondence. That indicated as to how Coal Handlers Pvt. Ltd. appointed the present assessee for their coal loading supervision for coal to be loaded from various collieries of Wes .....

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