OM SHIV TRANSPORT Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) HEARD Shri A.K. Batra, Consultant for the appellants and ld. D.R. Shri Amresh Jain for the respondent/Revenue. Since these appeals involve substantially similar facts and invite reference to identical statutory provisions, we consider it appropriate to dispose of these appeals by a common order. The assessee/appellants are aggrieved by adjudication orders passed by the Commissioner of Central Excise, Service Tax, Allahabad on different dates. Assessees are in the business of 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. For the period 1 -1 -2005 to 30th September, 2006, NCL was assessed and levied service tax, interest and penalties on these transactions treating the service provided by the assessees and others and received by NCL as the service of transport of goods by road, defined Section 65(105)(zzp) read with Section 65(50b). The adjudication order dated 9 -1 -2008 in respect of NCL was passed pursuant to the Show Cause Notice dated 20 -9 -2007 issued to NCL under Section 68(2) of the Finance Act, 1994 (the Act) read with Rule 2(1)(d)(v) of Service Tax Rules, 1994 whereby NCL, the recipient of the service of transport of goods by road, is liable to remit Service Tax. It is stated before us that the order of assessment (adjudication) dated 9 -1 -2008 in respect of NCL treating the service provided by the appellants as the service of transport of goods by road, has become final.

(2.) APPELLANTS challenge the several adjudication orders passed assessing them to Service Tax and to levy of interest and penalties on that basis on several grounds including that proceedings are barred by limitation in respect of certain period; that the adjudication authority erred in classifying the service as "cargo handling service" when the services truly and clearly fall within the class of "transport of goods by road"; and that as service tax was assessed and levied from NCL in respect of the same transaction, treating it as service of transport of goods by road, the self -same transaction involving the same value for the service rendered could not be as cargo handling service and brought to tax on that basis.

(3.) WE are not inclined to set out in detail, the contentions on behalf of the appellants on this aspect, which are contested by Id. DR since issue in so far as this Tribunal is concerned is settled by the decision of the Orissa High Court in Coal Carriers v. CCE - : 2011 (24) S.T.R. 395 (Ori.). After a detailed analysis of the relevant provisions, Orissa High Court declared that goods become cargo when loaded into a railway wagon/truck/tipper; that the distinction between goods and cargo is evident from the fact that transport of goods is liable to tax under the category "transport of goods by road services" that "cargo handling services" is defined in relation to cargo which clearly indicates that cargo handling services are distinct from "transport of goods by road".