TMI Blog2023 (6) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... provided under a single work order. The scope of the work order has to be read and interpreted in the context in which it has been awarded and the specification of separate rates for each sub-activity would not render each sub-activity to be a different taxable service. Therefore, separate rates for the various intermediate activities for carrying out this composite service have been provided in the work order - stand of the Revenue is flawed in treating each sub-service/activity as a separate taxable service, based on separate rates for each of them, without ascertaining the essence of the contract. Essential character of this composite service involving transportation and loading - HELD THAT:- Once it is found that the services are composite and has elements fitting into the definitions of both the services, recourse is to be taken to Section 65A.We note that Sub-section (2) clause (b) is relevant considering the facts of the case which provides that in case of composite service consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case are that a single work order for carrying out the services of (i) Trucking, loading and unloading of dolomite boulders from mines to crusher plant (ii) Haulage to Sonakhan Railway siding through Trucks (iii) Haulage of Dolomite from stock-pile/washery through trucks (iv) Haulage of dolomite from crusher bins to stock piles (v) Loading of dolomite into all types of railway wagons by machine/manual labour, with separate rate for each activity, was entered between the appellant and M/s TISCO. Show Cause Notice (SCN) was issued proposing demand under cargo handling service on the services noted in (i),(iii) and (v) above which was confirmed by the adjudicating authority. Aggrieved by the adjudication order, the appellant preferred an appeal before the appellate authority which was rejected. The appellants have all along contended that they are not handling any cargo but are providing transportation services within the mines. 3. Shri Sanjay Dixit, Ld. Chartered Accountant appeared for the Appellant and argued the matter on merits and also on limitation. 4. The Ld. Chartered Accountant submitted that the services provided to TISCO were essentially for transportation of dolom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... railway siding and (v) Loading of dolomite into all types of railway wagons by machine/manual labour have been alleged to fall under cargo handling services. No demand has been proposed on the other two services viz (ii) Haulage to Sonakhan Railway siding through Trucks and (iv) Haulage of dolomite from crusher bins to stock piles . It has been observed in the SCN that services (i) and (iii) involve loading and unloading and no separate rate for transportation has been provided for the services and therefore they are classifiable under cargo handling service with respect to the fifth service, viz, Loading of dolomite into all types of railway wagons by machine/manual labour. It has been observed that it squarely falls under cargo handling service. 10. We also take note that in the OIO the adjudicating authority has confirmed the demand by observing that the two services noted above in (i) and (iii) are composite in nature involve loading and unloading and no separate rate for transportation has been provided for the services and therefore they are composite service classifiable under cargo handling service in terms of section 65(23) read with Section 65(2)(b) of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from stock-pile/washery through trucks (iv) Haulage of dolomite from crusher bins to stock piles are primarily for transportation of dolomite within mines and the activity of loading and unloading embedded therein is merely incidental and a necessity for carrying out the primary / principal services of transportation. We further note that that nearly 83% of the total consideration specified in aggregate for the entire composite service is for these transportation services. Therefore, we have no doubt in holding that the primary and predominant service which gives the essential character to this composite service is the service of transportation. We hold accordingly. 15. The Ld. Chartered Accountant for the Appellant has relied on the judgment of the co-ordinate Bench of this Tribunal in the case of M/s Tycoons Industries Pvt. Ltd (supra) which is on identical facts as the Appellant in that case had been providing identical services within mines of TISCO and the demand was confirmed under the service category of cargo handling. The Co-ordinate Bench in Para 11 of its order, after examining the terms of agreement held that the essence of the contract is one for transportation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery much prominent, and transportation was incidental to handling activity and therefore the service was classifiable under cargo handling service. On a perusal of the contracts the Tribunal came to a conclusion that in all the three contracts loading of coal into wagons in railway sidings and loading and unloading services were of predominant nature and therefore, it held that the services carried on under these three contracts would come within the definition of cargo handling service. Thus, in essence the decision in the said case was based on the nature of the services which the appellant was required to carry on which suggested that the predominant nature of the contract was loading and unloading and transportation was an incidental activity. The Bench further distinguished the case of Sainik Mining and Allied Services Limited vs. Commissioner of C. EX, Cus and ST, BBSR 2008 (9) STR 531 (Tri. Kol) by observing that in the case of Sainik Mining, the services undertaken were principally the transportation of coal whereas in the case of Calcutta Industrial Supply Corpn, the description of work in the work orders was found principally of loading, unloading of coal where the handli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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