TMI Blog2016 (4) TMI 1385X X X X Extracts X X X X X X X X Extracts X X X X ..... show cause notice are accepted, the said contract does not amount to providing any 'Cargo Handling Service' as defined under Entry 23 of Section 65 of the Act. Therefore, we are of the opinion that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts, as admitted by the parties, which were so specifically recorded by the High Court itself. The High Court, on the interpretation of the aforesaid Entry, has observed that two conditions for considering any service to be 'Cargo Handling Service' need to be satisfied, namely; (1) there must be a cargo i.e. a packed or unpacked co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. The High Court has rightly concluded that the aforesaid services would not fall within the definition of 'Cargo Handing Services'. The conclusion of the High Court that services provided by the respondent-assessee did not amount to Cargo Handling Services and, therefore, no such service tax was leviable is upheld - Appeal dismissed. - CIVIL APPEAL NO. 3106 OF 2008 - - - Dated:- 13-4-2016 - HON'BLE MR. JUSTICE A. K. SIKRI AND HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN For the Appellant : Mr. A. K. Sanghi, Sr. Adv., Mr. P. K. Mullick, Adv., Mr. Ajay Kumar, Adv., Mr. B. Krishna Prasad, Adv. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nses were raised and in this manner, service tax was not paid. The show cause notice further alleged that the aforesaid alleged services provided by the respondent to its customers amounted to 'Cargo Handling Service', on which the respondent was liable to pay service tax. 3. The respondent challenged this show cause notice by filing a writ petition in the High Court, inter alia, contending that no services were provided by the respondent by entering into the aforesaid contract, as it was only supplying labour and the labour was not doing any work of packing, unpacking, loading and unloading of any cargo. The High Court, by the impugned Judgment, has accepted the plea of the respondent, resulting into allowing the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent to M/s Birla Corporation Ltd., could be treated as 'Cargo Handling Service' within the meaning of Entry 23 of Section 65 of the Act. This Entry reads as under :- 'Cargo Handling Service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for no containerized freight, services provided by a contrainers freight terminal, for all mode of transport and cargo handling service incident to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. 6. The High Court, on the interpretation of the aforesaid Entry, has observed that two conditions for considering any service to be &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was, in fact, been performed by the automatic machines. It is through these automatic machines, the cement bags were loaded, unloaded, packed or unpacked and this included Cargo Handing Services provided for freight in special containers or for non-containerized freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods. 10. On the reading of the aforesaid contract, coupled with the statement of Mr. Kailash Sharma, an officer of the respondent-Company, the High Court has rightly concluded that the aforesaid services would not fall wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a carto handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency. The aforesaid clarification given by the Department itself negates the case of the Department insofar as the facts of this case are concerned. 12. We, therefore, uphold the conclusion of the High Court that services provided by the respondent-assessee did not amount to Cargo Handling Services and, therefore, no such service tax was leviable. The appeal is, accordingly, dismissed. No costs. - - TaxTMI - TMITax - Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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