TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1042
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....d demand tax. 2. The second issue involved is whether the impugned order is bad for travelling beyond the scope of show-cause notice, inasmuch as in the SCN, the demand was proposed under the head 'cargo handling service'. The demand in the impugned order is confirmed under the Head C&F Service. 3. The Appellant is engaged in the business of providing different services to M/s. Ultratech Cement Ltd. (for short 'Ultratech') and to other service recipients. The activities of the Appellant carried out during the relevant period are divided into the following categories: a) Clearing & forwarding agent services (for short 'C&F services') to Ultratech [the Appellant has paid Service Tax on such transactions during the relevant period and reflected the same in ST-3 returns]; and b) Transportation of goods by road( (i) with issuance of consignment notes for Ultratech, on which Service Tax is paid by Ultratech under reverse charge mechanism under transportation of goods by road service (for short 'GTA service'), and (ii) without issuance of consignment notes from other GTAs, on which no Service Tax is payable). 4. These services are provided by the Appellant under different agreement....
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....ged that the entire activity undertaken by the Appellant under various agreements is a composite service, and it is at the time of raising invoices that the Appellant had split the activity into two parts, i.e. cargo handling charges and transportation charges. 10.3 In it reply to SCN, the Appellant pointed out that it entered into separate agreements from time to time with Ultratech, having different scope and had accordingly classified its activities and raised invoices. That the activities are to be classified separately as per agreement, and accordingly, there is no short-payment of tax by the Appellant. The Appellant explained the nature of activities carried out under each agreement separately and its consequent classification. 10.4 The demand has been confirmed in the Impugned Order by the Adjudicating Authority on the ground that a 'comprehensive service' agreement having multifarious limbs has deliberately been divided into various contracts, with intent to avoid true and correct Service Tax on the entire consideration, against the composite 'single service' and that the activities of the Appellant are classifiable as C&F agency services 10.5 It is submitted that this b....
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.... under these agreements are different and independent, and accordingly, to be classified separately. 11.3 It is submitted that no provision of the Act or any other law restricts a service provider in rendering more than one service to a service recipient. It, however, does not mean that all such services are to be combined and classified as one, merely because the service provider and the service recipient happen to be same. It is the nature of the services and not the capacity of parties, which determines the classification thereof. 11.4 Reliance is placed on decision of this Tribunal in Jain Carrying Corporation v. CCE, Jaipur, 2014-TIOL-3069-CESTATDEL, wherein the question was regarding classification of separate activities carried out under the same contract. Even though the said activities were carried out under the same contract. The Tribunal upheld separate classification of such activities, considering the different scope and nature thereof. This decision has been affirmed by Hon'ble Supreme Court at 2015 (39) STR J370 (SC). The present case of the Appellant is on a better footing, where activities are carried out under independent agreements. 11.5 Reliance is also place....
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....s treated as composite service and Service tax was charged on entire value and paid by the Appellant II. Transportation work 4 Secondary Transportation Agreement (Pure transportation activity) The Appellant is engaged to undertake only pure transportation activity of cement bags from one place to another place as per requirements from railway/godowns/depots directly to the customers. No activity other than transportation, such as handling, packing, loading or unloading etc., is undertaken under this agreement. For such transportation, the Appellant issues consignment notes. RUD-2,3,5,6 Treated as GTA service and Service Tax was payable by Ultratech under RCM. Dispute: Classification: Cargo Handling Service (as per revenue) 5 Primary transportation agreement The Appellant is engaged to undertake only pure transportation activity of cement bags directly from Plant locations of Ultratech to the customers. No activity other than transportation, such as handling, packing, loading or unloading etc., is undertaken under this agreement. For such transportation, the Appellant issues consignment notes. Annexure- 12 Treated as GTA service and Service Tax was payabl....
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....tion No. 30/2012-ST, dated 20.06.2012, which specified GTA services for the purposes of Section 68(2) of the Act, w.e.f. 01.07.2012 wherein the whole liability to pay Service Tax in respect of GTA services has been shifted to the service recipient. Application of legal provisions to activities carried out by the Appellant 12.7 Therefore, with regard to the first three categories of agreements as discussed above, full Service Tax liability has already been discharged. Further, fourth, fifth and sixth category of agreements, hereinabove, the same are pure transportation agreements without involvement of any other activity. The Appellant issues consignment notes in the fourth and fifth category of agreements, so it qualifies to be a GTA and on such GTA services rendered to Ultratech, the liability to pay tax rests with Ultratech under RCM. 12.8 In the sixth category of agreements, the consignment notes are issued by the main transporter itself. Therefore, the Appellant does not qualify to be a GTA in such transaction and its services are in the nature of transportation of goods by road, other than by GTA, which are covered under the negative list of services under Section 66D(p) of....
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....portation service provided under the Rake Handling Agent Agreement have already been charged to Service Tax, and Rs. 13,05,481/- has already been paid as such. 14.3 To the extent of Service Tax already paid by the Appellant contemporaneously during the relevant period, the confirmation of demand in the Impugned Order is liable to be set aside. 14.4 Further, the demand has been incorrectly calculated by the department as the alleged taxable value would be inclusive of the amount of Service Tax.Hence, for Service Tax calculation, the amount received by the Appellant should be considered as cum tax payment and Service Tax should be calculated accordingly. Extended period of limitation cannot be invoked. No interest is payable and no penalty is imposable. 15.1 It is submitted that the Appellant has not supressed any facts and the issues involved in the present matter pertain to interpretation of the contractual arrangements and legal provisions. 15.2 This is also clear from the different stands taken by the department itself at the stage of audit report, SCN and Impugned Order. The different stands taken regarding the interpretation of agreements have already been highlighted abov....
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....ce recipient. They have provided service as defined under Section 65B (44) of the Finance Act and accordingly, they are liable to pay service tax on the same. Further held that the services involved in the present case are not stand alone transport services as claimed. Thus, the concept of 'Reverse Charge Mechanism' was not applicable and the service recipient- Ultratech was not required to pay the tax. Thus, the demand of service tax was held to be legally tenable and not bad in law. It was further held that in view of the findings, the contention of the appellant that they have been engaged in providing transportation service under several transportation contracts and hence, the same cannot be clubbed with cargo handling agreement, is not at all sustainable. 17. The learned AR places reliance on the precedent rulings of this tribunal in the case of - i) Singh Transport Company vs. CCE (2018) 9 GSTL 201 Tribunal Delhi i) Adarsh Agency vs. CCE & C. (2017) 6 GST 157 Tribunal Mumbai. 18. Having considered the rival contention, we find that admittedly the demand in the show cause notice was proposed under the head- cargo handling service, whereas in the impugned order-in-origina....
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....para-2 of the agreement (RUD-2), provides that the appellant shall place trucks for transportation of consignment of the company from railway platform/shed/godown to the various destinations including those of dealers/stockist/individual customers as per the company's instructions on regular basis. The transport work shall be mainly carried out to different places in Rajasthan from Mata ka Than godown under Jodhpur depot. The list of specified destinations is as per the approved freight list forming part of the agreement. The other conditions are similar to the earlier agreement referred to hereinabove. Thus, we find that under this agreement under the scope of work, the appellant have correctly treated the work as GTA service and service tax have been rightly discharged by the recipient-Ultratech Cement Ltd under Reverse Charge Mechanism. Thus, the confirmation of demand on the appellant is bad and accordingly set aside. 21. Now we deal with the issue, where the appellant is not the GTA. The appellant have facilitated the transportation, the services have been provided by other GTA who have raised the consignment note. As per agreement the appellant have only facilitated the tran....