Page 130 - GSTL_18th June 2020_Vol 37_Part 3

344 GST LAW TIMES [ Vol. 37
duty benefit. The penalties under Section 78 of Finance Act, 1994 need to re-
worked accordingly.
12. In view of the above findings we remand the case to the Adjudicat-
ing Authority to redetermine the taxable demand, interest and penalties in the
light of above findings. The appeal is, accordingly, allowed to the extent indicat-
ed above.
(Order pronounced in open Court on 3-2-2020)

_______

2020 (37) G.S.T.L. 344 (Tri. - Kolkata)

IN THE CESTAT, EASTERN BENCH, KOLKATA
[COURT NO. II]
S/Shri P.K. Choudhary, Member (J) and P. Venkata Subba Rao,
Member (T)
COMMISSIONER OF S.T., KOLKATA

Versus
VIKASH CONSTRUCTION COMPANY
Final Order No. 76603/KOL/2019, dated 24-7-2019 in Appeal No. ST/171/2009-DB
and Cross Objection No. ST/CO/71/2009
Cargo Handling services - Services in nature of excavation and extrac-
tion of ores, providing machines incl. tippers on rent, Site Formation and
Demolition services and transportation of rejects for removal thereof for peri-
od 2002 to 2008 - Such services brought within purview of taxation under cate-
gory of Supply of Tangible Goods service w.e.f. 16-5-2008, Site Formation and
Clearance services w.e.f. 16-6-2005, etc. - Removal of rejects after excavation
cannot be said to be loading/unloading of cargo so as to classify them in Cargo
Handling services - Demand under head Cargo Handling services correctly
held to legally not sustainable - Sections 65(23), 65(97a) and 73 of Finance Act,
1994. [para 6]
Appeal rejected
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Instruction F. No. B11/1/2002-TRU, dated 1-8-2002 ...................................................... [Para 2]
REPRESENTED BY : Shri A. Roy, Authorised Representative, for the
Appellant.
Shri A.K. Das, Consultant, for the Respondent.
[Order per : P.K. Choudhary, Member (J)]. - The instant appeal has been
preferred by the Revenue against Order-in-Original dated 20-2-2009 passed by
the Ld. Commissioner, Service Tax, Kolkata, whereby the Ld. Commissioner has
dropped the service tax demand proposed in Show Cause Notices dated 16-10-
2007 and 15-10-2008 issued on M/s. Vikash Construction Co., for the period 2002
to 2008 under the category of “Cargo Handling Services”. The respondent
assessee has also filed Cross Objection No. 71/2009 in the said departmental
appeal.
GST LAW TIMES  18th June 2020  130