TMI Blog2023 (5) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... ided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. The Hon ble Supreme Court has accepted Hon ble High Court interpretation to the Entry viz. Cargo Handling Service wherein it was observed that there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and the service provider must independently be involved in loading unloading or packing-unpacking of the cargo. The decision of the Hon ble Supreme Court in the case of SINGH TRANSPORTERS VERSUS COMMISSIONER OF CENTRAL EXCISE, RAIPUR [ 2012 (7) TMI 566 - CESTAT, NEW DELHI ] squarely covers this issue - The issue involved therein was whether the coal transported from pitheads of the mines to the railway sidings would fall within the taxable service as defined under Section 65(105)(zzzy). Tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 22.02.2017, and penalties were imposed, which is the order under challenge in the present proceedings. 3. Shri A K Batra, learned counsel for the appellant submitted that the service rendered by appellant is merely the transportation of coal in tipping trucks within the mining area after loading such coal on such trucks by pay loaders and as such it does not fall within the definition of Cargo Handling Services . He further mentioned that M/s. NCL had awarded contracts to the appellant merely for the transportation of coal through tippers. The loading and unloading is merely an incidental activity to the said transportation. He also submitted that because of said incidental activity, the services as that of Goods Transport Agency cannot be called as Cargo Handling Services . He went on to submit that the Cargo Handling Service is taxable only if such service has been provided by a Cargo Handling Agency . Though the term has not been defined in the Act [The Finance Act, 1994], but there have been the circulars specifically a Circular No. B11/1/2002-TRU dated 01.08.2002, explaining that specific agencies are liable to be taxed under Cargo Handling Services . Those agenci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for non-containerised 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. 65(50b)- goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. The perusal of definition of Section 65(23) of the Act makes it clear that the Cargo Handling Service is an activity which requires: (i) A cargo, (ii) To be transported from freight terminal (ii) The activity has to be taken up by an agency specifically involved in the activity of Cargo Handling Services . 6. Cargo Handling Service has not been defined in the Act but is defined in Circular No. B11/1/2002-TRU, dated 01-08-2002 as the services of transporting coupled with loading, unloading, packing, unpacking can be called as Cargo Handling Service if those are done by the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and the service provider must independently be involved in loading unloading or packing-unpacking of the cargo. Also from the various decisions as relied upon by the appellant, we observe that issue has several times been adjudicated by this Tribunal. The decision of the Hon ble Supreme Court in the case of Singh Transporters Vs. Commissioner of Central Excise, Raipur [2012 (27) STR 488] squarely covers this issue. The issue involved therein was whether the coal transported from pitheads of the mines to the railway sidings would fall within the taxable service as defined under Section 65(105)(zzzy). Though the service in question in the said case was whether it was a mining service but the outcome is relevant for the present adjudication wherein it was held that the aforementioned activity is an activity as that of transportation of goods. The Hon ble Apex Court in the said decision has held as follows: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of two services with respect to one activity of transporting load through truck tippers. One such clarification dated 06.08.2008 reads as follows: 3. Issue : GTA provides service to a person in relation to transportation of goods by road in a goods carriage. The service provided is a single composite service which may include various intermediary and ancillary services such as loading/unloading, packing/unpacking, transshipment, temporary warehousing. For the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of intermediary and ancillary services. In such a case, whether the intermediary or ancillary activities is to be treated as part of GTA service and the abatement should be extended to the charges for such intermediary or ancillary service? Clarification : GTA provides a service in relation to transportation of goods by road which is a single composite service. GTA also issues consignment note. The composite service may include various intermediate and ancillary services provided in relation to the principal service of the road transport of goods. Such intermediate and ancillary se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 331 (T)] it was held that once the provisions has been changed, then the existing provisions at the time of issue of show cause notice should be applicable and not the earlier provisions. 9.3 In the case of M/s Mahakoshal Beverages Pvt. Ltd. Vs Commissioner of Cz. Ex., Belgaum [2007 (6) STR 148 (Tri-Bang)] the Tribunal held that demand cannot be confirmed in accordance with deleted provisions. 4. On a careful consideration, we are not agreeable with the contentions raised by the Commissioner in the written submissions and the learned JDR. The proviso to Section 73 of the Act was promulgated by Finance Act 2004 but adding proviso to Section 73 of the Central Excise Act, which is parimateria to Section 11A of Central Excise Act. The ingredients of the said proviso have not been invoked in the show cause notice to demand duty for larger period. The contention of the Revenue that the demands pertaining to period earlier to promulgation of the new Section 73 should be confirmed in terms of the deleted provisions of Section 73, is not sustainable. The Larger Bench judgment rendered in the case of Atma steel (supra) has clearly held that once a new provisions has been brought int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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