TMI Blog2017 (9) TMI 791X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed by Revenue to be covered by Site Formation Service was not eligible to be called Site Formation Service - appeal allowed - decided in favor of appellant. - Appeal Nos. ST/1779/2011 & ST/51756/2014-CU[DB] - Final Order Nos. 70975-70976/2017 - Dated:- 17-8-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri B.L. Narsimhan (Advocate) for Appellant Shri Mohd. Altaf (Assistant Commissioner) AR for Respondent ORDER Per : Anil G. Shakkarwar Above stated two appeals are having common issues and appellants are same, therefore, said two appeal are taken together for decision. Appeal No. ST/1779/20177 is directed against Order-in-Original No. (ST-168/2010 67/2011) 29 to 30 of 2011 dated 30.08.2011 and Appeal No. ST/51756/2014 is directed against Order-in-Original No. (ST-25/2012 165/2012) 12 13 of 2013 dated 20.12.2013. The above stated Orders-in-Original have been passed by Commissioner of Central Excise and Service Tax, Allahabad. 2. Brief facts of the case are that the appellants were engaged in executing projects and operations or implementations of projects and were also engaged in the activity of tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said whole service appeared to be covered under the ambit of Cargo handling Service as defined in Section 65 (23) of Chapter V of Finance Act, 1994 wherein Cargo handling Service means loading, unloading packing or unpacking of cargo for all modes of transport . It was further contended that appellant s job was construction of sump and garland drain, preparation and development of main sump, site cleaning from main sump, land development of pond ash, removing overburden dump with little blasting, excavation of fly ash from ash dykes and therefore, the said activity was site formation and clearance, excavation and earth moving and demolition service . Therefore, through the said show cause notice 18.03.2008 which covered period from 01.10.2002 to 28.02.2008, the appellant was called upon to show cause as to why, an amount of ₹ 8,05,10,268/- + Education Cess of ₹ 16,76,578/- should not be recovered from the appellant under the provision of proviso to sub Section (1) of Section 73 of Finance Act, 1994. For invocation of extended period, it was stated in the said show cause notice that the appellant deliberately with intention to evade payment of duty did not furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of goods. They further contended that CBEC Circular No. B.11/1/2002-TRU reported in 2002 (144) ELT T-6 to T-24 has clarified at Para 3.2 that mere transportation of goods is not covered in the category of cargo handling and is therefore not liable to service tax . They further contended that transportation of goods by road become taxable with effect from 01.01.2005 and burden in several cases is to be discharged by the recipients of service. They further contended that M/s KCIL and M/s IGL have already paid service tax on taxable value and submitted the payment details in the form of Annexure 6 and 7 to the said reply to the show cause notice to the Original Authority. During their submissions before Original Authority they also contended that site formation service includes drilling, boring, etc. for construction, geological or similar process and work being done by them was within area of mines and that was for mining by the service recipients and it was not for the purpose of construction and therefore the activity undertaken by them did not qualify to be defined as site preparation service. The Original Authority did not appreciate the submissions made before him and conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n all the cases their main activity was transportation of coal and loading and unloading were incidental, activities. (b) Services provided by the appellant were not liable to service tax under Cargo Handling Service and that the definition of Cargo Handling Service excludes mere transportation of goods. They contended that cargo handling service includes loading, unloading, packing or unpacking of cargo and mere transportation of goods was excluded from cargo handling service and Revenue has not submitted any evidence that they were involved in packing of cargo and that the contention in the said show cause notice that breaking of coal amounts to packing is not sustainable. In respect of site formation service they further reiterated their submissions before the Original Authority. 5. Heard Shri B.L. Narsimhan learned counsel for the appellant. He has presented the grounds of appeal and taken us through few of the work orders and demonstrated that their main work was related to transportation of coal and there was no element of packing involved in the whole process. He further contended that the contention in a show cause notice that breaking coal into smaller size was tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present appeals. 6. Heard the learned AR for Revenue who has supported the impugned Orders-in-Original 7. Having considered the rival contentions and on perusal of record we find that in the contracts executed by the appellant loading and unloading was incidental and transportation was the essential feature for the contract. The transportation of coal was mostly within the mining area. For the purpose of transportation and loading unloading was undertaken. Further, we find that the contention of Revenue that reducing of bigger coal block into smaller size amounts to packing is not tenable in law. We have also gone through the said Circular of CBEC dated 06.08.2008 and from the record we find that in the present case transportation of coal was main activity and loading and unloading was incidental to the same. Further there was no activity of packing or unpacking. Therefore, in view of definition of GTA service and Cargo Handling Service and in view of Circular of CBEC dated 06.08.2008 and in view of pronouncement has relied upon by the counsel we hold that the services rendered by the appellant covered under the above stated show cause notices did not qualified to the def ..... X X X X Extracts X X X X X X X X Extracts X X X X
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