2019 (2) TMI 675 - AT - Service Tax

Tribunal reclassifies transportation services, waives penalties under Section 78(1) Finance Act

The Tribunal allowed the appeal, classifying the transportation services under GTA service, not mining service. The extended period of limitation for ... Classification of services - Mining service or GTA Service - activity of mining and transportation of goods - whether the appellants were engaged in the activity of mining and transportation of goods, under the fact that the appellant have paid tax under the category of “Mining Service for the Mining Activity” and have paid tax on the transportation activity under the GTA? - extended period of limitation. Held that:- The appellant have got separate registration for both the categories of service that is mining service and GTA service along with other services. Further in the agreement, separate rates were mentioned for the mining activity and for the transportation activity. Further, it is admitted fact that the appellants have also transported the mineral mined by other entities also - The Hon’ble Supreme Court in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR VERSUS SINGH TRANSPORTERS [2017 (7) TMI 494 - SUPREME COURT] opined that the activity undertaken by Singh Transporters i.e. transportation of coal from pit –heads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105) (zzp) i.e. GTA service and it is not involved in the service in relation to the “mining of mineral”, oil or gas” as provided by Section 65(105) (zzzy) of the Act. Appeal allowed - decided in favor of appellant. Issues Involved:1. Classification of services provided by the appellant - whether they fall under 'Mining Service' or 'Goods Transport Agency' (GTA) service.2. Applicability of extended period of limitation for issuing the show cause notice.3. Imposition of penalties under Section 78(1) of the Finance Act.Issue-Wise Detailed Analysis:1. Classification of Services:The primary issue was whether the services provided by the appellant, which included mining and transportation of goods, should be classified under 'Mining Service' or 'Goods Transport Agency' (GTA) service. The appellant argued that they provided separate services for mining and transportation, with distinct charges and separate invoices for each service. They contended that transportation services were independent of mining activities and should be classified under GTA service, with the service recipient being liable for the service tax. The Adjudicating Authority, however, classified the transportation services as part of the 'mining services,' considering them incidental to mining.The Tribunal found that the appellant had separate registrations for mining and GTA services and that the agreements specified separate rates for each service. It was also noted that the appellant transported minerals mined by other entities, further supporting the argument that transportation services were independent. The Tribunal relied on the Supreme Court ruling in CCE & ST, Raipur Vs. Singh Transporters, which held that transportation of goods from pit-heads to railway sidings within mining areas falls under GTA service and not mining service. Consequently, the Tribunal concluded that the appellant's transportation services should be classified under GTA service, not mining service.2. Extended Period of Limitation:The appellant challenged the invocation of the extended period of limitation for issuing the show cause notice. They argued that they had been paying applicable service tax on mining services and filing returns as required. The Department was aware of their practices, as evidenced by previous communications and audits, and had even issued a show cause notice to a service recipient (Hindalco) for the same period. The appellant contended that the extended period could not be invoked as there was no suppression of facts or willful misstatement on their part.The Tribunal agreed with the appellant, noting that the Department had conducted investigations and audits and had issued a show cause notice to Hindalco. The Tribunal held that the extended period of limitation was not justifiable as the appellant had acted in a bona fide manner, and there was no evidence of suppression of facts. The demand was thus barred by limitation.3. Imposition of Penalties:The appellant argued against the imposition of penalties under Section 78(1) of the Finance Act, asserting that they had a bona fide belief regarding the classification of their services and had acted accordingly. They cited regular audits and the absence of objections from the Department as evidence of their bona fide belief and compliance.The Tribunal found merit in the appellant's arguments, noting that the issue involved complex interpretations of tax provisions and that the appellant had acted in good faith. The Tribunal held that penalties were not warranted in this case and should be waived under Section 80 of the Finance Act due to the reasonable cause for the appellant's actions.Conclusion:The Tribunal allowed the appeal, setting aside the impugned order. It held that the transportation services provided by the appellant should be classified under GTA service, not mining service. The invocation of the extended period of limitation was deemed unjustifiable, and the penalties imposed were waived. The appellant was entitled to consequential benefits in accordance with the law.(Dictated & pronounced in the open court)