2018 (11) TMI 174 – CESTAT NEW DELHI – TMI – Classification of services – loading, transport and unloading of coal from mining – whether classified under GTA Service or under the head Cargo Handling Services? – Held that:- It can be seen from a plain reading of 65A (2)(b) that the classification in the case of combined service is to be decided by analyzing the fact as to which service gives essential character to the service being performed – in the present case 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.
–
The service provided by the appellants have rightly been classified in the Goods Transportation Agency service.
–
This issue has already been examined by the Hon’
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
ppellants 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 above mentioned appellants falls under the category of cargo handling services as defined under section 65 (105) (zr) read with section 105 (23) of the Finance Act, 1994 or whether the service tax is correctly been paid by recipient of the service under Goods Transportation Agency service on reverse charge basis. In this regard, it will be appropriate to have a look at the sample contract with regard to above mentioned appellant Description of work Distance Quantity Rate Value Period Loading of coal into Wagons by Pay Loader by mechanical means at BG Siding of Bench Area 0.40 KM 500000 MT each Rs.4.80/ MT Rs.2400000/- 10(Ten months) 32. The rates are based on ruling price of diesel as on 18.08.2009 i.e. ₹ 37.01/Ltr. 33. Escalation
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
f 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, classifiable under two or more sub-clauses of clause (105) of section 65, classification shall be effected as follows: (a) the sub-clause which provides the most specific description shall be preferred to sub-clauses providing a more general description; (b) composite service consisting of a combination of different services which cannot be classified in the manner specified in clause (a), shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable; (c) when a service cannot be classified in the manner specified in clause (a) or clause (b), it shall be classified under the sub-clause which occurs first among the sub-clauses which equally merit consideration.] 4. It can be see
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tivity 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 judgment is reproduced herein below: 6. Be that as it may, even if the relied upon judgment in the case of Arjuna Carriers (supra) is of no consequence to the present case, we are of the view that the activity undertaken by the respondent i.e. transportation of coal from the pit-heads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105)(zzp) of the Act, namely, under the head transport of goods by road service and does not involve any service in relation to mining of mineral, oil or gas as provided by Section 65(105)(zzzy) of the Act. 7. In view of above, we find no merit in the impugned order, the same is set-aside and the appeal is allowed with consequential relief, if any. (operative part of the order p
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =