Shri Trilok Singh Khanduja Versus CGST, CE & ST, Bhopal
Service Tax
2018 (11) TMI 174 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 8-10-2018
Service Tax Appeal No. 53994 of 2014 – FINAL ORDER No. 53198/2018
Service Tax
Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial)
Shri Manish Saharan, Advocate for the Appellants
Shri G R Singh, AR for the Respondent
ORDER
Per C L Mahar:
The appellants are engaged in providing taxable services under the category of “Goods Transport Agency Services” to M/s. Western Coal Field Ltd. during the period January 2009 to March 2011. Show Cause Notice dated 27.09.2010 for the period April 2009 to March 2010 was issued on the ground that the appellants were doing loading, transport and unloading of coal from mining under the category of “Cargo Handling Services”.
2. The basic issue before us for adjudication is that whether the department is correct in holding that the service provided by the ab
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ed terms of the contract that rates which have been provided to the appellant is based on the distance for which transportation of the coal is to be undertaken by the service provider i.e. the appellant in these cases. The relevant prices as mentioned above is also subject to escalation of the transportation rates as per changes in the fuel price for the relevant period. This basically signifies that the rates are pre-dominantly for transportation of cargo rather than for handing of cargo. However, before proceeding further the relevant section 65 A of Finance Act, 1994 need to be looked into in detail for classification of the service rendered by the appellant. The provisions of section 65A provides as follows:-
SECTION 65A. Classification of taxable services – (1) For the purposes of this Chapter, classification of taxable services shall be determined according to the terms of the sub-clause (105) of Section 65;
(2) When for any reason, a taxable service, is prima facie, classifia
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above contract that the essential character of the service for which contract has been entered by the service provider is that the service received are for transportation of coal for mining area to the railway siding and the activity of loading/ unloading mechanically or otherwise is in our view, is only incidental to the activity of transportation of the cargo in these cases.
5. In view of the above, we hold that the service provided by the appellants have rightly been classified in the Goods Transportation Agency service.
6. We also feel that this issue has already been examined by the Hon'ble Supreme Court in their decision in the case of CCE & ST Raipur Vs Singh Transporters [(2017 (4) GSTL 3 (SC)] wherein the Hon'ble Supreme Court has held that activity undertaken by the assessee of transporting of coal from the pithead of the mines to railway siding is more appropriately classifiable under service head of Transport of Goods by road services. The relevant extract of the above ju
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