Page 135 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] S.K. MINERAL HANDLING PVT. LTD. v. C.C.E., CUS. & S.T., BHUBANESWAR-II 53
this Tribunal vide its Order No. 21815-21818/2018, dated 29-11-2018 has held
that the appellants are not liable to pay 6% of the value of the electricity cleared
by the assessee to the power distribution company. Further I find that in the pre-
sent case, the electricity was generated by use of the waste products and there-
fore Rule 6 of the CCR is not applicable in view of the judgment of the Hon’ble
Apex Court in the case of UOI v. Hindustan Zinc Ltd. and other decisions cited
supra. Further I also find that coal ash/Dolo char is a residual waste arising out
of the burning of coal which cannot be said to be a manufacture of final product.
Further I find that both the authorities have ignored the amendment introduced
w.e.f. 1-4-2016 by addition of Rule 6(3AA) which permits the assessee to re-
verse/pay proportionate Cenvat credit relating to common input or attributable
to input services and in the present case, the appellant is making use of this sub-
rule and has paid the amount of Rs. 11,23,096/- along with applicable interest of
Rs. 4,86,007/- vide various challans enclosed which according to me, satisfied the
requirement of Rule 6(3A). Consequently, the demand of 6% of the value of elec-
tricity sold to the GESCOM is not sustainable in law and therefore I set aside the
impugned order by allowing the appeal of the appellant with consequential re-
lief, if any.
(Order was pronounced in open Court on 21-10-2019)

_______

2020 (38) G.S.T.L. 53 (Tri. - Kolkata)
IN THE CESTAT, EASTERN BENCH, KOLKATA
[COURT NO. II]
S/Shri P.K. Choudhary, Member (J) and P.V. Subba Rao, Member (T)
S.K. MINERAL HANDLING PVT. LTD.
Versus
C.C.E., CUS. & S.T., BHUBANESWAR-II

Final Order No. 76384/KOL/2019, dated 22-10-2019 in Appeal
No. ST/110/2009-DB
Cargo Handling service - Shifting of iron ore lumps and fines from
dump yard to Railway siding - Since contract for the said activity being essen-
tially for transportation of goods upto a short distance of ½ km. which inci-
dentally involved loading of tipper at dump yard and unloading same at Rail-
way track/siding, such activity not taxable under the category of Cargo Han-
dling service merely because the said contract is composite in nature providing
composite rate and not separate rates for loading, transportation and unload-
ing particularly when the assessee is not Cargo Handling Agent - Sections
65(23) and 65(105)(zr) of Finance Act, 1994. [paras 5, 7, 8]
Appeal allowed
CASES CITED
Commissioner v. Singh Transporters — 2017 (4) G.S.T.L. 3 (S.C.) — Referred ................................. [Para 4]
Khanduja Coal Transport Company v. Commissioner
— 2019-TIOL-1018-CESTAT-DEL — Referred ............................................................................. [Para 4]
GST LAW TIMES  2nd July 2020  135