Union Of India v. M/S R.K.Transport Company
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR TAXC No. 8 of 2013
Versus
M/s H.N.Transport (P) Ltd. S/o Near DGM Office, Gevra Project, Distt. Korba (C.G.) TAXC No. 5 Of 2013 Dhamtari Road, Tikrapara, Raipur C.G.
M/s Gajraj Carriers Pvt.Ltd. S/o Dipka Camp, C/o SECL Dipka Exp. Project, P.O. Chainpur, Distt. Korba C.G.
TAXC No. 6 Of 2013 Commissioner, Central Excise, Raipur (C.G.) M/s Arjuna Carriers Pvt. Ltd., Old Dipka Project, Gevra, Distt. Korba (C.G.)
TAXC No. 7 Of 2013 M/s Korba Coal Carriers (P) Ltd., MGR Railway Siding, Gevra Project, Distt. Korba C.G.
TAXC No. 9 Of 2013 Commissioner, Central Excise Raipur (C.G.) M/s Chhattisgarh Coal Transport Pvt.Ltd., P.O. Gevra Project, Distt. Korba (C.G.) TAXC No. 10 Of 2013 M/s Kusmunda Coal Transport Pvt.Ltd. Kusmunda, Distt. Korba (C.G.)
TAXC No. 11 Of 2013 M/s Shivam Coal Carriers (P) Ltd., SECL, Manikpur Project, Distt. Korba (C.G.) TAXC No. 12 Of 2013 M/s Shree Ganraj Coal Transport Pvt. Ltd., Behind CGM Office, SECL, Kusmunda, Distt. Korba (C.G.) TAXC No. 13 Of 2013 M/s Gevra Coal Transport Pvt.Ltd. P.O. Gevra Project, Distt. Korba (C.G.)
TAXC No. 15 Of 2013 M/s V.N. Transport Pvt. Ltd., Opposite Excavation Workshop, Gevra Project, Distt. Korba (C.G.) TAXC No. 16 Of 2013 Tikrapara, Raipur C.G.
M/s G.L. Coal Carriers Pvt. Ltd. SECL Dipka Expansion Project, P.O. Chainpur, Distt. Korba (Chhattisgarh) TAXC No. 53 Of 2012 Union Of India Through Commissioner, Central Excise & Custom, Central Excise Bhawan, Dhamtari Road, Tikarapara, Raipur C.G. • M/s J.K. Trasport (Proprietor Smt. Swaroop Bai Nahar) 01 Malviya Nagar Durg
TAXC No. 52 Of 2012 Union Of India Through Commissioner, Central Excise & Custom, Central Excise Bhawan, Dhamtari Road, Tikarapara, Raipur C.G. M/s Dilip Construction Co. Main Raod, Dalli-Rajhara Dist. Durg C.G. TAXC No. 40 Of 2017 Commissioner, Central Excise Customs & Service Tax Bilaspur, At Central Excise Bhawan, Tikrapara, Dhamtari Road, Raipur, Chhattisgarh M/s A.K. Transport Camp- Kusmunda, South Eastern Coalfields Limited, District Korba, Chhattisgarh TAXC No. 63 Of 2012 Union Of India Through- Commissioner, Central Excise & Custom, Central Excise Bhawan, Dhamtari Road, Tikarapara, Raipur C.G. M/s Singh Transporters 78, Shanti Nagar, Ameri Road, Near MPEB Power Station, P.O. Mangla, Bilaspur- 495001
TAXC No. 69 Of 2012 Union Of India Through Commissioner, Central Excise & Customs, Central Excise Building, Dhamtari Road, Tikrapara, Raipur C.G. M/s Anupama Coal Carriers Pvt.Ltd. Near East MTK-OB Dump, Camp Gevra Project, Gevra, Dist. Korba C.G.
TAXC No. 54 of 2012 Union Of India Through Commissioner, Central Excise & Customs, Central Excise Building, Dhamtari Road, Tikrapara, Raipur C.G. M/s Mahabir Traders, Main Road, Sahid Chowk, Dalli-Rajhara Dist. Durg, C.G.
TAXC No. 64 of 2012 Union Of India Through Commissioner, Central Excise & Customs, Central Excise Building, Dhamtari Road, Tikrapara, Raipur C.G. M/s R.K. Transport Company, Navkar Parisar, Pulgaon Naka, Durg Dist. Durg, C.G. 491001
For Appellants :
Shri Vinay Pandey, Advocate For Respondents :
Shri L. Badri Narayanan, Smt. Smiti Sharma, Shri Raja Sharma, Shri Vinay Jain, Shri Rahul Tamaskar, and Shri Abhiyuday Singh, Advocates Hon'ble Shri Thottathil B. Radhakrishnan, Chief Justice Hon'ble Shri Sharad Kumar Gupta, Judge Order On Board Per Thottathil B. Radhakrishnan, Chief Justice 27.07.2017
1. These matters are presented under Section 35G of the Central Excise Act challenging the decision of the Customs, Excise, Service Tax Appellate Tribunal (for short 'CESTAT') holding that the activities of the respective respondents do not fall within the definition of the cargo handling service as defined in Section 65(23) of the Finance Act, 1994 for the purpose of levy of service tax.
2. The preliminary objection of the learned counsel appearing for the respondents is that these appeals are not maintainable since the issues raised are matters which fall under Section 35L of the Central Excise Act and hence excluded from the purview of the Section 35G of that Act, which provides for appeal to the High Court. We have heard the learned counsel for the appellant Revenue and the respondents on this issue.
3. Section 65(105)(zr) of the Finance Act, 1994 defines the provider of taxable service in relation to cargo handling services thereby making such activity a taxable service. The question as to whether the different transactions of the respondents with SECL, SAIL, BALCO,
HINDALCO etc. would form taxable services is predominantly a question of fact and cannot by themselves give rise to any substantial question of law to be determined and decided as one such. However, it appears to fall within those matters which get excluded from the purview of Section 35G of the Central Excise Act by the specific exclusion contained in Subsection 1 of Section 35G of the Central Excise Act. This is also reflected by Clause (b) of 35L of the Central Excise Act which deals with appeals to the Supreme Court. We are therefore, of the view that these appeals at the instance of the Revenue are not maintainable under Section 35G of the Central Excise Act.
4. In the result, holding that they are not maintainable under Section 35G of the Central Excise Act, these appeals are dismissed without prejudice to the right of the appellants to seek appropriate remedy in accordance with law.
Sd/- Sd/- (Thottathil B. Radhakrishnan) (Sharad Kumar Gupta) Chief Justice Judge Kishore