TaxTMI 
TaxTMI 
2023 (12) TMI 566
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....but the charges towards the retention of the Transit Mixers by the customer irrespective of the fact that transit mixers are actually physically put to use or not. Thus, this charge are in the nature of rental charges for the supply of transit mixers and hence, it falls under the category of "Supply of Tangible Goods Services". Concurring with the contention made in the show cause notice the Adjudicating Authority has confirmed the demand of Service Tax treating the activity as "Supply of Tangible Goods Service" therefore the present appeal filed by the appellant. 2. Shri Saurabh Dixit, Learned Counsel, appearing on behalf of the appellant submits that the nature of activity in the present case is that of transportation of RMC depends on "how much load is transported‟ as also "distance of transportation‟. 2.1 He submits that the prime essence is the arrangement of transporting RMC, this clarified as Goods Transport Agency Service/ Transport Service and not supply of tangible goods at all. He submits that manner of payment of service charge will not decide the category of service, it should be based on the nature of activity carried out by the service provider. In ....
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.... as Cenvat Credit to users and hence, being the revenue natural situation the entire demand is time barred, in the light of the following Judgment: Messes Nabros Pharma Pvt. Ltd 2022 (9) TMI 272- CESTAT Ahm P.R. Rolling Mills Pvt. Ltd 2010 (249) ELT 232 (Tri-Bang) P.R. Rolling Mills Pvt. Ltd 2010 (260) ELT A84 (SC) Jet Airway (I) Ltd. 2016 (44) STR 465 (Tri-Mum) Jet Airway (I) Ltd. 2017 (7) GSTL J35 (SC) 3. Shri P.K. Singh, Learned Superintendent (AR), appearing on behalf of the revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the record. We find that the revenue has alleged that the appellant‟s activity is "supply of tangible goods for use‟ in as much as the appellant have provided the vehicle to the service recipient. On the examination of the fact of the case we find that as per the contract between the appellant and the service recipient, who were engaged in the manufacture of ready-mix concrete is that the appellant is obliged to transport the ready-mix concrete from the plant of the service recipient to the site of the customers....
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....lar basis in a clean vehicle in accordance with prudent industrial practices. 2. For this purpose you will deploy fleet of 6 M3 Capacity of Vehicles mounted on suitable chassis in numbers adequate to transport 9000 M3 of Ready Mix Concrete every month. 3. The services shall commence within 15 days from the date of acceptance of this work order. 11. Transportation Charges: The transportation charges payable to you shall be as below: a) Rs. 140/- per cum for quantity of Ready Mix Concrete transported during a calendar month; and b) Rs. 20.34 per km for distance travelled during the month in the transportation of our Ready Mix Concrete. 12. Minimum quantity: we assure to provide a minimum load of 745 cum per month per Vehicle. In case the actual transportation is less than 745 cum we shall pay for minimum quantity of 745 cum. 15. Escalation: The rates per km at Rs. 20.34 mentioned in clause 11(b) are on the basis of diesel prices of Rs. 34.13 per litre. In case of any variation in rates of diesel the transportation charges payable shall be increased by Rs. 0.58 per km for each Re. 1.00 of increase in diesel rates.....
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....s transport agency, in relation to transport of goods by road in a goods carriage;" 17. On the other hand, the taxable entry for supply of taxable goods is contained in section 65(105) (zzzzj) and is as follows:- "65(105)(zzzzj) to any person, by any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances; POST- NEGATIVE LIST 18. Section 66B provides that there shall be levied a tax to be referred to as service tax on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such a manner as may be prescribed. The "negative list‟ is provided for in section 66D of the Act. Section 65B(44) of the Act as inserted w.e.f. 1 July, 2012 defines "service‟ to mean any activity carried out by any person for another for consideration and includes a declared service but would not include certain services specified in clauses (a), (b) and (c). Declared services have....
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....rol the vehicles. 21. This conclusion drawn by the Commissioner is a patently wrong understanding of the conditions of the work order. The Appellant did not give on hire the vehicles. Even the subject matter of the "work order is for transportation of Ready Mix Concrete in vehicle/vehicles from our Jaipur 1TD Ready Mix Plant at Jaipur". The contract that has been awarded is also for transportation of Ready Mix Concrete from the plant of the Appellant on the terms and conditions mentioned in the work order. Condition No. 1 of the work order is that the Appellant shall load RMC in the vehicle and transport the same to the required destination and unload it at the customer's site. Merely because the work order requires the Appellant to deploy a fleet of 6M3 capacity vehicles for transport of 9000 M3 of RMC every month does not mean that the Appellant has given vehicles on hire. The work order only requires the Appellant to ensure that it has available a fleet of vehicles adequate enough to transport a particular quantity of RMC every month. Even the transportation charges are under two heads. The first is payment of a certain amount for the quantity of RMC transported during ....
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....een disputed in the show cause notice. 25. It would be seen from that pre-negative list period prior to 1 July, 2012 that the following two conditions have to be satisfied for a service to fall within the purview of GTA service:- (i) There should be transportation of goods by road; and (ii) Issuance of consignment note by GTA for the post negative list period from 1 July, 2012 to 31 March, 2013. 26. The following conditions have to be satisfied pre-negative list for a service to qualify as a GTA service: (i) There should be an activity in relation to transport of goods by road; (ii) Issuance of consignment note by the GTA; (iii) Activity is performed by a GTA for another; and (iv) Activity is performed for consideration. 27. It cannot be doubted that the first condition with regard to both pre-negative list and the post-negative list is satisfied since RMC has been transported by the Appellant using transit mixers of the Appellant by road. The second condition relating to issuance of consignment note by GTA in the pre-negative list period and the postnegative list period is also satisfied as the Appellant had issued the....
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....transport slurry or water from our plant to the desired desetination 2. For this purpose you will deploy fleet of 6M3 Capacity of Vehicles mounted on suitable chassis in numbers adequate to transport 2980 M3 of Ready Mix Concrete every month ................ 6. It shall be your responsibility to ensure transportation and delivery of material within time given as per schedule ................ 8. Since a part of your compensation under this agreement is based on actual kilometers travelled by the vehicles during transportation of our RMC you shall maintain logbook provided to you on daily and the same should be shown to our Production-in-charge and his initial would be taken on daily basis. The distance travelled for transportation of the material shall be on the shortest route basis irrespective of actual route taken by you. .................. 11. Transportation Charges : The transportation charges payable to you shall be as below: A) Rs. 150/- per CuM for quantity of RMC transported during calendar month. TM should not be old more than 7 years. B) Rs.33.94/- per km for distance travelled during the mon....
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.... the copies of consignment notes and of customer acknowledgement and also submit reports to us in the formats supplied by us at the required intervals. From the plain reading of the above terms and condition of the contract, it is absolutely clear that M/s. Ultratech Cement Limited is concerned only about the transportation of RMC from their plant to their customer's site and the charges for such transportation is also on the basis of quantity of the goods and per kilometer basis. It is also observed from the clauses of the contract that entire operation and maintenance activity is the responsibility of the appellant only. The contract also prescribes that essential consignment notes of loads and obtain proper receipt from the customers after goods are delivered. It is also the fact that all the transporters to charge M/s. Ultratech Cement Limited as recipient of service for discharging service tax of such transportation. On the basis of these facts, it is absolutely clear that the appellant are providing service of transportation of goods whereas the demand is raised under the category of service of Supply of Tangible Goods for Use. We have no hesitation to opine that as ....
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....onth. 3. The services shall commence within 15 days from the date of acceptance of this work order. 11. Transportation Charges: The transportation charges payable to you shall be as below : (a) Rs. 140/- per cum for quantity of Ready Mix Concrete transported during a calendar month; and (b) Rs. 20.34 per km for distance travelled during the month in the transportation of our Ready Mix Concrete. 12. Minimum quantity : we assure to provide a minimum load of 745 cum per month per vehicle. In case the actual transportation is less than 745 cum we shall pay for minimum quantity of 745 cum. 15. Escalation : The rates per km at Rs. 20.34 mentioned in clause 11(b) are on the basis of diesel prices of Rs. 34.13 per litre. In case of any variation in rates of diesel the transportation charges payable shall be increased by Rs. 0.58 per km for each Re. 1.00 of increase in diesel rates. 22. You will carry out all operation and maintenance activities at your cost. You will maintain all vehicles used for providing the services under this agreement in good working condition with periodical servicing and repair. 26. Un....
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.... any other person in relation to supply of tangible goods including machinery, equipment and appliances for use, without transferring right of possession and effective control of such machinery, equipment and appliances;" Post-Negative List 18. Section 66B provides that there shall be levied a tax to be referred to as service tax on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such a manner as may be prescribed. The 'negative list' is provided for in Section 66D of the Act. Section 65B(44) of the Act as inserted w.e.f. 1 July, 2012 defines 'service' to mean any activity carried out by any person for another for consideration and includes a declared service but would not include certain services specified in clauses (a), (b) and (c). Declared services have been enumerated in Section 66E of the Act. Sub-clause (f) of Section 66E, which is relevant for the purposes of the controversy involved in this appeal, is as follows :- "(f) transfer of goods by way of hiring, leasing, licensing or in any such manner without transf....
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....ncrete in vehicle/vehicles from our Jaipur 1TD Ready Mix Plant at Jaipur". The contract that has been awarded is also for transportation of Ready Mix Concrete from the plant of the appellant on the terms and conditions mentioned in the work order. Condition No. 1 of the work order is that the appellant shall load RMC in the vehicle and transport the same to the required destination and unload it at the customer's site. Merely because the work order requires the appellant to deploy a fleet of 6M3 capacity vehicles for transport of 9000 M3 of RMC every month does not mean that the appellant has given vehicles on hire. The work order only requires the appellant to ensure that it has available a fleet of vehicles adequate enough to transport a particular quantity of RMC every month. Even the transportation charges are under two heads. The first is payment of a certain amount for the quantity of RMC transported during a calendar month and a certain amount per km for the distance travelled for transportation of RMC during the month. 22. It is for this reason that the appellant had contended that the activity of transportation of RMC by road falls under the taxable service GT....
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.... transportation of goods by road; and (ii) Issuance of consignment note by GTA for the post-negative list period from 1 July, 2012 to 31 March, 2013. 26. The following conditions have to be satisfied pre-negative list for a service to qualify as a GTA service : (i) There should be an activity in relation to transport of goods by road; (ii) Issuance of consignment note by the GTA; (iii) Activity is performed by a GTA for another; and (iv) Activity is performed for consideration. 27. It cannot be doubted that the first condition with regard to both pre-negative list and the post-negative list is satisfied since RMC has been transported by the appellant using transit mixers of the appellant by road. The second condition relating to issuance of consignment note by GTA in the pre-negative list period and the post-negative list period is also satisfied as the appellant had issued the consignment notes. The third condition in the post-negative list period is that the activity should be performed by the GTA for another. It cannot be doubted that the appellant has undertaken the transportation of RMC for the mine owners. The fou....