J.K. Transport Vs. Commissioner of Central Excise - Court Judgment

Excerpt:
1. appellants filed this appeal against the order-in-appeal passed by the commissioner (appeals) whereby the demand of service tax has been confirmed as appellants were providing cargo handling services. the definition of cargo handling services provided under section 65(23) of chapter v of the finance act, 1994 is as under : cargo handling service" means loading, unloading, packing or unpacking of cargo including cargo handling services provided for freight in special containers or for non-containerised freight service provided by a container freight terminal or any other freight terminal for all modes of transport and cargo handling services incidental to freight but does not included handling of export cargo or passenger baggage or mere transportation of goods.2. the only contention is of the appellants is that they are not covered under the definition of cargo handling services in view of the central board of excise and customs circular f. no. b/1/2002-tru, dated 1-8-2002. we have gone through the board circular, which provides as under : another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. for example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. it is clarified that such activities will not come under the purview of service tax as a cargo handling agency.3. we find that the board circular provides that individuals undertaking the activity of loading or unloading of cargo in their individual capacity, are not covered under the scope of cargo handling services, in the present case appellant is a proprietary firm and were engaged in the contract of loading and unloading blast furnace granulated slag at the site of m/s. acc jamul cement works. in these facts it cannot be said that the appellants is individual and in individual capacity he is undertaking the activity of loading and unloading of cargo handling services. therefore, the reliance of the appellant on the board circular dated 1-8-2002 is no help to them.appeal is dismissed.

Judgment:
1. Appellants filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby the demand of service tax has been confirmed as appellants were providing Cargo Handling Services. The definition of Cargo Handling Services provided under Section 65(23) of Chapter V of the Finance Act, 1994 is as under : Cargo Handling Service" means loading, unloading, packing or unpacking of cargo including cargo handling services provided for freight in special containers or for non-containerised freight service provided by a container freight terminal or any other freight terminal for all modes of transport and cargo handling services incidental to freight but does not included handling of export cargo or passenger baggage or mere transportation of goods.

2. The only contention is of the appellants is that they are not covered under the definition of Cargo Handling Services in view of the Central Board of Excise and Customs Circular F. No. B/1/2002-TRU, dated 1-8-2002. We have gone through the Board Circular, which provides as under : Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency.

3. We find that the Board Circular provides that individuals undertaking the activity of loading or unloading of cargo in their individual capacity, are not covered under the scope of Cargo Handling Services, in the present case appellant is a proprietary firm and were engaged in the contract of loading and unloading Blast furnace granulated slag at the site of M/s. ACC Jamul Cement Works. In these facts it cannot be said that the appellants is individual and in individual capacity he is undertaking the activity of loading and unloading of Cargo Handling Services. Therefore, the reliance of the appellant on the Board Circular dated 1-8-2002 is no help to them.

Appeal is dismissed.