ORDER
S.L. Peeran, Member (J)
1. The appellant is required to pre-deposit Service Tax amount of Rs. 1,82,801/- and equivalent penalty under Section 78 of the Finance Act, 1994 and another penalty of Rs. 1000/- under Section 77 of the Act.
2. The appellants were carrying on breaking/crushing of lime stones boulders and transporting the same from the mines. During the period in question, these activities were not under the category of “production or processing of goods”. However the Department has proceeded to bring the element of transportation of limestone from outside of mines site under the category of “cargo handling service”. The appellants contend that the activity can be classified under the category of ‘Business Auxiliary Service’ and not the ‘Cargo Handling Service’. Their prayer has not been accepted.
3. Heard both the sides in the matter.
4. The learned DR submits that they were carrying on loading and unloading of crushed limestone which is a part of ‘cargo handling service’ and that activity is required to be classified under that heading.
5. This is resisted by the learned Counsel. He relies on the following judgments:
(i) J & J Enterprises v. CCE, Raipur
(ii) HPL Chemicals Ltd. v. CCE
(iii) 20 Microns Ltd. v. CCE
He also relies on the Board Circular No. 334/4/2006-TRU dated 28.2.2006.
6. We have perused the impugned order and have gone through the facts of the case. The appellants were carrying on breaking/crushing of limestone boulders into stone jelly. The same were transported from the mines. Prima facie, this service cannot be classified under the category of ‘Cargo Handling Service’ but the same is classifiable under the classification of ‘Business Auxiliary Service’. Hence the stay application is allowed by granting waiver of pre-deposit of the amount and staying its recovery till the disposal of the appeal. As the issue is covered, the matter is listed for final hearing on 24th January 2008.
(Pronounced and dictated in the open court)