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TMI Blog2017 (12) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Engineers(OSE), who has been awarded contract for construction of four lane national highway No. 6 from Kondhali to Talegaon near Nagpur. The scope of work order is (i) Loading segregating, sizing, stockpiling, excavating transportation & unloading feeding of suitable Rock Boulder of size up to 600 MM into crushing plant at crusher stock yard as directed by OSE (ii) Overburden removal including loading & transporting, dozing as per the direction of OSE (iii) Soft Rock( which requires drilling and Blasting). The allegation in the show cause notice is that the said activity falls under the category of Cargo Handling Servicesas defined under Section 65(105) (zr) of the Finance Act, 1994 read with Section 65(23) ibid and hence service tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant has not obtained Service Tax Registration under "Site Formation and Clearances" Services but under the category of "Mining of Mineral, Oil or Gas Services" after 31-03-2009 whereas, the provisions were introduced w.e.f. 01-06-2007 which itself establishes that the Appellant's activities do not fall under the category of 'Site Formation and Clearance" Service as contended by the Appellant. (IV) Commissioner (Appeals) failed to appreciate the facts that as per sub-clauses (a), (b) & (c) of sub section (2) of Section 65A of the Finance Act, 1994, the activities provided by the Appellant are covered under the category of "Cargo Handling Services" as discussed in para 14.2 to 14.4 of the impugned Order-in-Original. (V) Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration [2015(39)STRJ370(SC)] (b) CCE, Bhubaneshwar II Vs. B.K> Thakkar[2008(9)STR 542(Tri.-Kolk)] (c) N Rajashekhar & Co. Vs. CCE. Mysore[2008(12)STR 760(Tri. Bang.)] (d) Avtar & Company Vs. CCE, Nagpur [2015(37)STR 781(Tri. Nagpur)] (e) M.N. Electricals Vs. CC, C and ST, BBSR-II[2008(10)STR 222(Tri. Kolkata)] (f) National construction C. Vs. CCE Jaipur [2014(34)STR 739(Tri. Del)] 5. We have carefully considered the submissions made by both sides and perused the records. 6. We find that the department has raised the demand considering the services of the respondent under the category of Cargo Handling Services. To decide the classification first nature of service has to be examined. As per the work order, following services we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, sizing, stockpiling, over burden removal, dozing etc., therefore it cannot be said that service provided by the respondent is mainly transportation, loading, unloading therefore this being ancillary service to the various other main services, overall services cannot be classified as Cargo Handling Service therefore once the departments proposal of classification fails entire show cause notice is liable to be quashed. Moreover, as discussed above services involved is correctly classifiable under Site Formation and clearances, excavation and earth moving and demolish service provided for construction of road of National Highway, the same is exempted under Notification NO.17/2005-ST dated 7-6-2005. Ld. Commissioner has also examined the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service falls under the cargo handling services the entire activity can be classified as cargo handling services. The appellant contented that the activity carried on by the appellant does not fall under the .scope of Cargo Handling Services on the other hand it is complete job of excavation and transportation. Considering the scope of work, the part of the work will get covered under 'Site Formation and Clearance, Excavation and Earth Moving and Demolition' service classifiable under Section 65 (105) (zzza) of Finance Act, 1994 and remaining activity is merely transportation of material from query to crusher site. 7. It is evident from the contract, the impugned work of earth excavation and transportation is in connection with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndertake the removal of overburden besides the job of loading segregating sizing and transportation of rock boulders to the destined site. It is not mere transportation but it is incidental to mining. Therefore, activities carried out by the Appellant is not covered under "Cargo Handling Service" and hence not liable for service tax. I find that Hon'ble CESTAT, New Delhi in the case of CCE Jaipur I V/ s Lwcmi Trading Co. - 2008(10)STR 620 (Tri-Del) has held that :- "Cargo Handling Service- Loading and transportation -Contract for several activities from mining to delivery of limestone at the place of client -Finding in impugned order that loading incidental to mining, reasonable-Respondent not an agent for Cargo Handling Service- Car ..... X X X X Extracts X X X X X X X X Extracts X X X X
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