Page 131 - GSTL_18th June 2020_Vol 37_Part 3

2020 ] COMMISSIONER OF S.T., KOLKATA v. VIKASH CONSTRUCTION COMPANY 345
2. Briefly stated, the facts of the case are that the respondent assessee
has rendered the services in the nature of excavation and extraction of ores,
providing machines incl. tippers on rent, site formation and demolition services
and transportation of rejects for removal thereof. The SCN was issued to classify
and tax the aforesaid services under the taxable category of “Cargo Handling
Services”. The Ld. Commissioner while taking note of the clarification issued by
C.B.E. & C. vide M.F. (DR) F. No. B11/1/2002-TRU, dated 1-8-2002 observed that
the services rendered by assessee could not be classified as Cargo Handling Ser-
vices. He examined in detail, as noted in Page No. 8 of the adjudication order, the
various activities undertaken by the assessee during the period in dispute such
as hiring of tippers, excavation and earth work, cleaning and scrubbing, supply-
ing and filling up with sand, filling up the embankment, water compaction, re-
moval of unsuitable materials, which could not be classified as Cargo Handling
Services inasmuch as the said services were appropriately introduced in service
tax net on a later date subsequent to the period in dispute.
3. Sri A. Roy, Ld. DR appeared for the Revenue and Sri A.K. Das, Ld.
Consultant, appeared for the respondent assessee.
4. The Ld. DR reiterated the grounds of appeal to contend that the re-
moval of materials after excavation is taxable under the head Cargo Handling
services and therefore the assessee is liable to pay tax. On the contrary, the Ld.
Consultant for the assessee submitted that the Ld. Commissioner has analysed in
great detail the activities undertaken by the assessee which could not be taxed as
Cargo Handling Services inasmuch as the said services have been appropriately
brought within the purview of taxation on a subsequent date. He submitted that
it is a settled legal position of law that when new service is introduced, it was not
part of any earlier pre-existing services as rightly observed by the Commissioner.
He prayed that the appeal of the Revenue be dismissed being without any merit.
5. Heard both sides and perused the appeal records.
6. We find force in the contention of the Ld. Consultant that the ser-
vices provided by the assessee were not taxable during the period in dispute in-
asmuch as the said services have been brought within the purview of taxation
under the category of Supply of Tangible Goods service w.e.f. 16-5-2008, Site
Formation & Clearance Services w.e.f. 16-6-2005, etc. The services provided by
assessee for removal of rejects after excavation cannot be said to be load-
ing/unloading of cargo so as to classify them in Cargo Handling Services. The
Ld. Commissioner has rightly held that the demand proposed in the SCN under
the head Cargo Handling Services is legally not sustainable and therefore, in our
view, the impugned adjudication order passed by the Ld. Commissioner does
not warrant any interference.
7. Hence, the appeal filed by Revenue does not have any merit and
thus rejected. The Cross Objection filed by respondent assessee also stands dis-
posed.
(Operative part of the order was pronounced in the open Court)

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GST LAW TIMES  18th June 2020  131