9911796707
TMI Blog2008 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 2. The appellants have already deposited the amounts of Rs.1,39,67,579/- and Rs. 74,21,738/- respectively. They are required to pre-deposit an amount of Rs. 2,25,19,764/- which pertains to Stay Application No. ST/50/2007 in ST/62/2007. A Misc. Order No. 211/2007 dated 18-4-2007 S.T.R. was issued by this Bench granting interim stay with a direction that the appellant's stay application and appeal would be heard finally. The matter was heard and reserved for orders on 22nd August, 2007. While preparing the order, it came to light that the issue in assessee's own case had been decided against them by the CESTAT, Kolkata Bench and hence the matter had been re-opened for hearing. 3. The issue is that the appellants are carrying on the act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Services provided by a container freight terminal or any other freight terminal and (iv) Cargo handling service incidental to freight. 5.1 The definition applies to all modes of transport. The only exception provided in the definition is handling of export cargo, passenger baggage and mere transportation of goods. 5.2 In the cited decision in M/s. S.B. Construction Co. (cited supra), the Hon'ble High Court of Rajasthan has held as follows :- 10. In the instant case, the coal is handled/moved from railway wagons to the site of Thermal Power Station with the aid of wagon tippling system to be fed in the boiler bunkers through conveyor system. It is evident that handling of the coal is done through wagon tippling system or conveyor system, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Rajasthan High Court has considered un-loading of the coal by the wagon tippling system and thereafter the coal was transported by conveyor belt and not by any other means of transportation. Hence, the ratio of the decision based on such consideration will apply to a similar case where the goods are transported by conveyor belt etc. and not by employing any other means of transportation such as truck, rail etc. There is no finding by the Hon'ble High Court on the fact that coal was initially moved by rail. The cited decision is entirely based on a consideration of the question that subsequent movement of the coal from the wagons to the Thermal Power Stations was by means other than employing one of the usual means of transportat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the impugned period and hence they are liable to pay the service tax as held by the authorities below. 5.5 Learned Advocate states that part of the cargo was meant for export and hence by definition the same is required to be excluded from the ambit of levy of service tax. We find merit in this submission of the learned Advocate. 5.6 The learned Advocate also states that since the issue involved relates to classification of the impugned service, imposition of penalty on the Appellants is not justified. Considering the fact that the levy on cargo handling service was a new tax, we are of the view that a lenient consideration in regard to imposition of penalty is called for. 5.7 In view of our findings as above, we hold that the activi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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