Page 137 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] S.K. MINERAL HANDLING PVT. LTD. v. C.C.E., CUS. & S.T., BHUBANESWAR-II 55
Advocate submits that they are transporter and not Cargo Handling Agents and
to attract the levy unless the twin test of handling of “cargo” by a “Cargo Han-
dling Agent” are not satisfied, no tax can be demanded by implication and with-
out clear authority of law. In the instant case it is nobody’s case that the appellant
is a Cargo Handling Agent. The Learned Counsel further relied upon the deci-
sions of this Tribunal in the case of Shri Raj Coal Carriers P. Ltd. v. CCE vide Order
dated 24-4-2019 bearing No. FO/75464/2019 in Appeal No. ST/158/2009, M/s.
Lakhanpur Coal Carriers v. CCE vide Order dated 24-4-2019 bearing No.
FO/75466/2019 in Appeal No. ST/159/2009 and Khanduja Coal Transport Compa-
ny v. CGST reported in 2019-TIOL-1018-CESTAT-DEL to contend that transpor-
tation for short distance cannot be taxed under the category of Cargo Handling
Services but as transport services. The Learned Advocate further relied upon
judgment of the Hon’ble Supreme Court in the case of CCE v. Singh Transporters
reported in 2017-TIOL-249- SC-ST to contend that transportation for short dis-
tance is taxable as transportation service. The Learned Counsel also contended
that the demand is barred by normal period of limitation.
5. The Learned Authorized Representative for the respondent supports
the impugned order. It is contended by the Learned Authorized Representative
that since the contract is composite for loading of tipper, transportation upto ½
km. and unloading at Railway Track Head and under the contract the rate is
composite, hence, as per Circular No. B11/1/2002-TRU, dated 1-8-2002 the entire
transportation charges shall be taxable under the category of Cargo Handling
Services.
6. Heard both the sides and perused the appeal records.
7. We find from Page 16, 17 & 18 of the show cause notice that service
tax is demanded only on the local transportation/shifting charges collected by
the appellant which is inclusive of loading of tipper, transportation upto Railway
Track Head and automated unloaded of tipper at the Railway Track Head. A
perusal of the show cause notice shows that the demand in the instant case is on
the “Work of Shifting of Iron Ore Lumps and Fines from Dump Yard to Railway
Siding” which involved loading at Dump Yard, transportation and unloading at
Railway Siding. The appellant has already paid service tax on wagon loading
activities which is clear from the quantification made in the show cause notice.
8. We find that the contract is essentially for the transportation of
goods which incidentally involving loading of tipper/unloading of tipper at
Railway Track head/Railway Siding which cannot be taxed under the category
of Cargo Handling Service simply because rates for loading of tipper at Dump
Yard and unloading of tipper at Railway Siding is not provided separately. The
Learned Commissioner (Appeals) has erred in placing reliance on Circular No.
B11/1/2002-TRU, dated 1-8-2002 which does not apply to the facts of the instant
case. Further, it is nobody’s case that the appellant is a Cargo Handling Agent to
attract the levy under the category of Cargo Handling Services.
9. We accordingly, set aside the impugned order and allow the appeal
with consequential relief(s) to the appellant.
(Order pronounced in the open Court on 22 October, 2019)

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GST LAW TIMES  2nd July 2020  137