TMI Blog2021 (12) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... ute. The settled legal interpretation which has been given by the Hon ble Supreme Court in several decisions when amendment brought about to a statute by insertion of a new definition or a clause, such insertion will always be prospective in nature. In this regard, guidance provided by the decision of the Hon ble Supreme Court in BALAJI ENTERPRISES VERSUS COLLECTOR OF CENTRAL EXCISE, MADRAS [ 1997 (5) TMI 108 - SUPREME COURT] . In the said decision the Court noted that waste and scrap could not be brought to tax as aluminium in crude form as waste and scrap was already included in item no.27(A) of the Tariff and if that is so there would not have been any need for making the entry (aa) and the amendment left sub-item (A) of item 27 unto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endment to the Finance Act, 1994 with effect from 16th May, 2008 relating to supply of tangible goods applied to the services rendered by the respondent assessee? ii. Whether the tribunal applied the law correctly in its impugned order dated 19th June, 2018? We have heard Mr. Somnath Ganguli, learned standing counsel appearing for the appellant/Revenue and Mr. Sudhir Kr. Mehta, learned counsel appearing for the respondent/assessee. The Commissioner of Central Excise, Haldia Commissionerate, Kolkata issued show cause notice dated 22nd July, 2008 alleging that the respondent/assessee had not just supplied material handling machine on hire to provide the service of material handling with the help of material handling equipment such as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been done by their client. Further, the assessee contended that they did not handle materials and the same were done by their client with the help of Cranes which were taken on hire from the assessee. Therefore, the assessee contended that it was erroneous on the part of the Department to hold that the assessee had rendered the services in relation to the logistic to their client and thus the said services is classified under the category of Support Services of Business or Commerce as defined under section 65 (104c) of the Act. Further, it was contended that the services of providing material handling equipment on hire to any person as in the case of the assessee was not within the ambit of services tax during the period under consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing inserted by sub-clause (zzzzj) in clause 105 of Section 65 of the Act held that the activity of supply of material handling equipment such as Cranes, etc. is not leviable under the category of Support Services of Business or Commerce and this activity has come to the scope of service tax category only with effect from 16th May, 2008 and, therefore, set aside the order passed by the Commissioner. Aggrieved by the same, the Revenue before us by way of this appeal. The learned counsel for the respondent raised a preliminary objection with regard to the maintainability of this appeal before this court on the ground that the issue involved relates to classification dispute and the appeal, if any, can be maintained only before the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Apart from that the Tribunal has also taken note of the decision of the Calcutta Tribunal in the case of Devanchand Ramsaran vs. Commissioner of C.Ex., Dibrugarh, 2019 (24) G.S.T.L. 646 (Tri.-Kolkata). In the said case the assessee had challenged the demand for service tax under the category of Business Auxiliary Service. It was contended that the activities carried out by ONGC will not fall within the category of Business Auxiliary Service as the contract clearly indicated that it was a case of pure hire of cranes which was placed at the disposal of ONGC for their operation along with necessary operators. At best such activities are falling under the category of section 65(105)(zzzz), i.e., under the category of Supply of Tangible Good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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