TMI Blog2017 (9) TMI 1329X X X X Extracts X X X X X X X X Extracts X X X X ..... as reported in Sainik Mining & Allied Services Ltd. Vs. Commr. of Central Excise, Customs & Service Tax, BBSR [2007 (11) TMI 90 - CESTAT, KOLKATA], where it was held that the transportation of coal within the mining area is not covered under the category of Cargo Handling Services - there is no justification to uphold the demand of Service Tax under the category of Cargo Handling services for the work carried out in respect of transportation of coal within the Mining area. Activity of hiring pay loaders for mechanical transfer of finished goods from Railway siding inside the Mines into Railway wagons for outward transportation - demand - Held that: - the issue is covered against the appellant in the case of M/s. Gajanand Agarwal Vs. CCEx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for mechanical transfer of Coal into Wagons. For the above activities, the Department demanded Service Tax under the category of Cargo Handling Service as defined under Section 65 (23) of the Finance Act, 1994. For the period August, 2005 to December, 2006, after issuing show cause notice, service tax demand amounting to ₹ 64,04,447/- was confirmed against the appellant along with the order of interest and penalties under various Sections of the Finance Act, 1994. Aggrieved, the present appeals have been filed. 2. With the above background, we heard Shri Kartik Kurmy, Ld. Counsel for the appellant and Sri S. Guha, Ld. Counsel for the Department. 3. The appellant has carried out the following three type ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are providing Cargo Handling services which are taxable and the appellants are liable for the amount in dispute. 6. The activity covered under Sl. No. (1) of the table of the previous page involves extraction of coal in the coal mines making use of machinery. Further, the scope of work also includes transfer of such coal to tippers for dumping inside the mines. We note that same activity has been held to be covered under Mining service which is leviable to Service Tax only w.e.f. 1/6/2007. Such a view has also been taken by the Commissioner (Appeal) for the earlier period vide his order dated 27/02/2008. The Revenue did not file any appeal against this order. We hold that the issue has achieved finality in favour of the appellant. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or truck and the activities undertaken by the appellants in terms of the contracts on behalf of M/s. MCL to move coal within mining area do not fall in the category of cargo handling service. Moreover, the activities undertaken are principally the transportation of coal within mining area and hence, the gross amounts received for the same cannot be taxed under the category of cargo handling service. We have, therefore, no hesitation in our mind to hold that the definition of cargo handling service under the Finance Act, 1994, does not include the kind of activities undertaken by the appellants and hence the same are not chargeable to service tax. We also find that there was no suppression or mis-statement by the appellants regarding the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on the facts and circumstances of the case. We intervene to the Revisional order involved in Appeal case No. 41/06 and waive entire penalty imposed finding no justification of imposition since there was no willful suppression. We noticed that the appellants had no intention to cause evasion of revenue but at the infancy stage of implementation of law there appears to have confusion as to taxability. Accordingly, we waive the penalties levied under different Section of the law on all the appellants by the impugned orders. But we make it clear that when tax was leviable and realizable, the appellants shall be required to make payment of interest on the tax. Interest shall be calculated as per law in all cases and realised. By followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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