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TMI Blog2023 (6) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... e interest, penalty of Rs. 5,000/- under Section 77 and Rs.15,01,089/- under Section 78 of Finance Act 1994 by confirming the classification under cargo handling services. 2. Briefly stated the facts of the 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 proposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period of limitation, the entire demand falls outside the normal period of limitation. He submitted that since the issue involves classification of services which is in turn requires interpretation of the provisions of the Act, extended period of limitation cannot be invoked. It was also submitted that no positive act of suppression/willful misstatement with an intent to evade payment of service tax has been brought out in the proceedings. 6. Shri K. Chowdhury, Ld. Authorized Representative appeared for the respondent Revenue and reiterated the findings of the lower authorities. The Ld. Authorized Representative strongly relied on the following judgments to contend that the three services rendered by the appellant fall under the car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarely 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 Act 1994. 11. The appellate authority has confirmed the demand that all services provided by the Appellant are for handling of goods and therefore classifiable under cargo handling services. 12. We have carefully examined the nature of services provided by the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 essential character, in so far as this criterion is applicable. 14. We find that four out of the five activities under the work-order viz 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 are primarily for transportati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s expressed and the ratio laid therein is squarely applicable in the instant appeal. 16. The Ld. Chartered Accountant has also argued on the aspect of limitation. We find that the show cause notice was issued beyond the normal period of limitation which was one year at that relevant point of time. The issue in the present appeal is one involving interpretation of law. We further note that the issue of classification between the services of transportation and cargo handling was a vexed and disputable issue. It is a settled law that invocation of extended period cannot be sustained in such cases. Thus, the demand is not sustainable on the ground of limitation also. 17. On the other hand, the Ld. Authorized Representative appearing for the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 coa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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