2013 (31) S.T.R. 152 (Tri.-Del) Om Shiv Transport vs. Commissioner of Central Excise, Allahabad

Facts:
The Appellants were engaged in transportation of coal in tipping trucks from coal stockyard of Northern Coal Fields Ltd. (NCL) including loading of coal into tipping trucks and railway wagons by employing their own pay loaders apart from manual breaking of coal to the stipulated sizes. The revenue demanded service tax on this considering it a cargo handling service.

The Appellants, relying on Circular No. 137/175/2007- CX4 dated 06-08-2008, contended that the services were in the nature of transport of goods by road. In respect of the same transaction, NCL was assessed to service tax as recipient of service of transport of goods by road vide adjudication order dated 09-01-2008. Invoking extended period of limitation was not warranted since the transaction was already adjudicated against NCL.

Held:
Relying on the decision of the Orissa High Court in case of Coal Carriers vs. CCE 2011 (24) STR 295 (Ori), the Tribunal held that the goods become cargo when loaded into a railway wagon/truck/ tipper and that there is a distinction between goods and cargo. Services in respect of goods were leviable to service tax under transport of goods by road services and services in respect of cargo were leviable to service tax under cargo handling services and thus, the Appellant’s services would fall under cargo handling services. However, the adjudication order did not consider certain aspects and the matter was remanded to consider the applicability of extended period of limitation in lieu of the transactions having been noticed by the revenue qua notice issued to NCL and whether service tax could be assessed once again on the same transaction under cargo handling services in the hands of the Appellants when it was already classified as transport of goods by road and service tax was collected from NCL as recipient of services.