Page 136 - GSTL_2nd July 2020 _Vol 38_Part 1

54 GST LAW TIMES [ Vol. 38
Lakhanpur Coal Carriers v. CCE — Final Order No. 75466/2019,
dated 24-4-2019 by CESTAT, Kolkata — Referred ...................................................................... [Para 4]
Shri Raj Coal Carriers P. Ltd. v. CCE — Final Order No. 75464/2019,
dated 24-4-2019 by CESTAT, Kolkata — Referred ...................................................................... [Para 4]
DEPARTMENTAL CLARIFICATION CITED
C.B.E. & C. Instruction No. B11/1/2002-TRU, dated 1-8-2002 ................................................. [Paras 4, 5, 8]
REPRESENTED BY : Shri Kartik Kurmy, Advocate, for the Appellant.
Shri D. Haldar, Authorized Representative, for the
Respondent.
[Order per : P.K. Choudhary, Member (J)]. - This appeal arises out of the
Order-in-Appeal No. 05/ST/B-II/2009, dated 30 January, 2009 passed by the
Learned Commissioner (Appeals) of Central Excise, Customs & Service Tax,
Bhubaneswar.
2. The facts of the case in brief are that during the period under dispute
i.e. January, 2005 to December, 2005 the appellant executed composite activity of
local transportation of Iron Ore from mines dump yard to the Rail Track
Heads/Railway Siding upto lead of ½ km in Automated Tipping Trucks (goods
carriage), with incidental loading into such tipping trucks and automated un-
loading at the Railway Track Head/Railway Siding.
3. The automated tipping trucks are fitted with Hydraulic Jack facility
for automatic unloading without any human intervention. The appellant pre-
pares bills for “local transportation” on their client. Department has confirmed
Service Tax demand of Rs. 18,50,827/- on such activities. It appears from Page 16
& Page 17 of the show cause notice dated 1-2-2007 that the said transportation for
short distance is treated by the department as “Shifting” for short distances
which the appellant has claimed to be transportation but as per the show causing
authority, it cannot be transportation activity but Cargo Handling activity. As
per Para 8 of the show cause notice the rate is composite and no charges for load-
ing, unloading is collected separately by the appellant. On perusal of the quanti-
fication of demand placed at Annexure-1 of the show cause notice (Page 309) it
appears that there are separate contract for local transportation and wagon load-
ing activities and the two contracts are distinct and separate and in the instant
case service tax is already paid by the appellant on the wagon loading activities
but no service tax is paid on the transportation/shifting activities on which ser-
vice tax is now demanded.
4. The Learned Advocate for the appellant Shri Kartik Kurmy took us
through the bills raised by the appellant for wagon loading and Local Transpor-
tation/Shifting to demonstrate that the wagon loading contracts and local trans-
portation contract are separate. The appellant has already discharged service tax
on wagon loading activities. In the show cause notice service tax is demanded
only on the local transportation/shifting work (with incidental loading of tippers
and automated unloading at Railway Track Head). The Learned Advocate fur-
ther submits that the Learned Commissioner (Appeals) in the impugned Order
under Para 33 following the Board Circular No. B11/1/2002-TRU, dated 1-8-2002
(Para 4) has sought to tax the entire consideration under the category of “Cargo
Handling Services” on the ground that for loading of tippers, transportation and
unloading of tippers at the Railway Track Head/Railway Siding, there is no sep-
arate rates provided, therefore, as per the said circular the entire consideration
shall be taxable under the category of Cargo Handling Services. The Learned

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