2013 (12) TMI 1021 - AT - Service Tax

Tribunal upholds classification of services, jurisdiction, limitation period, and penalties in appeal dismissal.

The Tribunal dismissed the appeals, upholding the classification of services as 'Clearing and Forwarding Agents,' confirming the jurisdiction of the Pune ... Demand of service tax - Classification of service - Clearing and Forwarding Agents or Business Support Services - Jurisdiction of Court - Invokation of extended period of limitation - Imposition of penalty - Held that:- The appellants were receiving goods from various sources, warehousing the goods, receiving orders and based upon the orders the goods were being packed for outbound transportation. We are, therefore, of the considered view that the activities carried out by the appellants are covered within the definition of 'Clearing and Forwarding Agent” service. The fact that the warehouse or the place of activity is owned or provided by M/s. Ford India Ltd. will not make any difference in the nature of service. Similarly the fact that the transports are arranged by Ford India Ltd. will not make any difference. The service is broadly receiving the goods, warehousing these goods, receiving dispatch orders from Ford India Ltd., arranging dispatch of goods, maintaining records of the incoming shipments and deliveries. We, therefore, hold that the service provided by the appellant is Clearing and Forwarding Agents Services. The appellants have also stated that they are paying tax under Business Support Service from 01.05.2006. This will not make any difference as during the period in dispute 'Business Support Service” was not in existence in the list of taxable services and after 01.05.2006the classification of the activities will have to be made as per Section 65Aof the Finance Act, 1994. Service Tax authorities at Chengalpattu in Tamil Nadu were asking the appellants to take registration and make payment of duty. However, the appellants have given the impression that the Registration is taken in the office located in Pune and all the matters relating to the Service Tax are being dealt with in Pune Commissionerate . The only conclusion from the said correspondence is that the Pune office was controlling the Chengalpattu operation and were to pay service tax in Pune alone. By taking a separate registration in 2006 the position for the past period cannot be changed. Under the circumstances we hold that the demand notice as well as the proceedings have been held in the correct jurisdiction. Demand is from October 1999 onwards. The appellant had not taken any registration. The first time they took registration was in December 2001 relating to clearing and forwarding services. However, after taking the registration they did not pay service tax or filed any returns. After sometime they started correspondence disputing the leviability of service tax. Keeping in view the conduct of the appellants, we have no hesitation in holding that there was a clear-cut suppression of activities before 2002 and later-on also the act of correspondence, not filing the returns etc. clearly indicates the willful intention to evade service tax. We therefore hold that the extended period is correctly invoked. Since the amount collected is for various components of services, amount collected cannot be considered as including service tax and hence benefit of cum duty cannot be extended in terms of Section 67 (2) of the Finance Act, 1994 - conduct of the appellants has not been above board. Did not take registration till 2001, even after taking registration did not file returns etc., informing service tax authorities in Tamil Nadu about Pune registration, all these indicates suppression of facts as also contravention of law with willful intention to evade payment of duties. We therefore hold that penalties are correctly imposed - Decided agaisnt assessee. Issues Involved:1. Classification of Services2. Jurisdiction of Commissioner of Central Excise, Pune3. Extended Period of Limitation4. Basis of Demand Calculation5. Cum-duty Benefit6. Imposition of PenaltyDetailed Analysis:1. Classification of Services:The appellants argued that their activities should be classified under 'Business Support Services' instead of 'Clearing and Forwarding Agents' services. They contended that the warehouse used for their operations belonged to M/s. Ford India Ltd., and they did not arrange the transport for receiving or dispatching goods. However, the Tribunal held that the appellants' activities, which included receiving goods, warehousing, order processing, and dispatching goods, clearly fell under the definition of 'Clearing and Forwarding Agents' services as per the Finance Act, 1994. The Tribunal noted that the ownership of the warehouse or the provision of software and computers by Ford India Ltd. did not alter the nature of the services provided.2. Jurisdiction of Commissioner of Central Excise, Pune:The appellants contested the jurisdiction of the Pune Commissionerate, arguing that their warehouse was located in Chengalpattu, Tamil Nadu. The Tribunal found that the appellants had initially taken registration in Pune in 2001 and had corresponded with the service tax authorities in Tamil Nadu, indicating that the Pune office was controlling the Chengalpattu operations. Therefore, the Tribunal held that the demand notice and proceedings were correctly held under the Pune jurisdiction, rejecting the appellants' plea.3. Extended Period of Limitation:The appellants claimed they had a bona fide belief that their activities did not fall under 'Clearing and Forwarding Agents' services, and thus the extended period of limitation should not apply. The Tribunal noted that the appellants did not take registration until December 2001 and did not pay service tax or file returns thereafter. The Tribunal held that the appellants' conduct indicated a willful intention to evade service tax, justifying the invocation of the extended period of limitation.4. Basis of Demand Calculation:The appellants argued that the demands were based on bills raised rather than on receipts, which would substantially reduce the demand. The Tribunal found that the appellants had received payments for all the bills, and any delay in receiving payments did not affect the liability. Therefore, the Tribunal rejected this contention.5. Cum-duty Benefit:The appellants requested cum-duty benefit, arguing that they had not collected service tax from M/s. Ford India Ltd. The Tribunal found no merit in this contention, stating that the amount collected for various services could not be considered as including service tax. Hence, the benefit of cum-duty could not be extended under Section 67(2) of the Finance Act, 1994.6. Imposition of Penalty:The appellants contended that no penalty should be imposed due to their bona fide belief regarding the non-applicability of service tax. The Tribunal observed that the appellants' conduct, including delayed registration, non-filing of returns, and misleading the authorities, indicated suppression of facts and contravention of the law with a willful intention to evade payment of duties. Therefore, the Tribunal upheld the imposition of penalties.Conclusion:The appeals were dismissed, and the Tribunal upheld the classification of services under 'Clearing and Forwarding Agents,' confirmed the jurisdiction of the Pune Commissionerate, justified the invocation of the extended period of limitation, rejected the basis of demand calculation and cum-duty benefit claims, and upheld the imposition of penalties.