TaxTMI 
TaxTMI 
2025 (7) TMI 71
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....een imposed under Section 77 of the Act for not obtaining registration in respect of cargo handling service. 2. Briefly stated, the facts of the case are that during the material period, M/s. Linde India Limited (hereinafter referred to as the "appellant") were engaged in the manufacture and sale of gases like nitrogen, hydrogen, oxygen, argon, etc. at several locations in different parts of the country. It had factories as well as depots. The appellant sold compressed gas in cylinders which were returnable by the customers. The appellant also sold gases in liquid form in bulk. In case of sale at the factory gate/depot, the customer was required to take delivery of the goods. Trucks served as the means for transportation of the cylinders containing compressed gas. For transportation of liquid gas, trucks mounted with cryogenic tankers were used. Where the customers by their orders so stipulated, the appellant engaged transporters for transportation of compressed gas in cylinders on trucks and liquid gas in the appellant's cryogenic tankers mounted on trucks to the customer's premises. The trucks belonged to the transporters. The appellant paid the freight charged by the transpor....
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....ted June 8, 2018, the Board rescinded and modified some of its previous circulars so that the same were in accordance with the law laid down by the Hon'ble Supreme Court in the aforesaid three decisions. It was stated that the principle laid down in Roofit and Emco cases (supra) would apply where the ownership, risk in transit, remained with the seller till goods were accepted by buyer on delivery and till such time of delivery, seller alone remained the owner of goods retaining right of disposal. 3. The appellant opted for Sabka Vishwas (Legacy Dispute Resolution) Scheme, 2019 in respect of all the aforesaid show cause notices numbering 12 issued by the Central Excise authorities proposing to demand duty by treating the buyer's premises as the place of sale. Subsequently, by an order dated January 19, 2024, the Joint Commissioner closed the said 12 show cause notices. 3.1. In the meantime, on October 19, 2012, a show cause-cum-demand notice was issued by the Additional Director General, DGCEI, Mumbai, proposing to demand service tax on the collection and delivery charges on the ground that such charges were collected for 'cargo handling service' including loading, tr....
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.... accordingly, he submits that the submissions hereinafter are in respect of liquid oxygen for delivery of which cryogenic tankers were used. 5.1. The appellant submits that according to the Ld. Commissioner, they were involved in providing "services for freight (which is liquid gas) in special container (which is cryogenic "container") which was provision of cargo handling service to its customers. 5.2. It is submitted by the appellant that the agreements entered with their customers with regard to liquid gas stipulated that the appellant shall supply the goods into the storage tank installed at the customers' premises and the quantity delivered shall be measured and recorded on the delivery note; that it is not in dispute that the central excise invoices were issued after the liquid gas was delivered at the customers' premises for the quantity actually delivered. It is also pointed out that though the appellant and the customers agreed upon the basic price of the product per 100 m3 and delivery charge per 100 m3, what was sold was only the quantity actually delivered into the storage tank at the customers' premises as recorded in the delivery note upon measurement at the tim....
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.... submits that the Ld. Commissioner was wrong in dismissing the appellant's contention about sales tax/VAT and service tax being mutually exclusive, a principle settled by the Hon'ble Supreme Court. It is their contention that he failed to consider that the appellant paid service tax on freight paid to transporters on reverse charge basis and such payment did not in any way contradict the appellant's stand that collection and delivery charges formed part of sale price for sale of the goods on the whole of which sales tax/VAT was payable and had been duly paid; the basic fallacy in the Ld. Commissioner's approach, as per the appellant, was in treating delivery of the liquid gas at the customer's premises as a different transaction separate from the transaction of sale of the gas. 5.7. The appellant further submits that they were not a 'Cargo Handling Agency' and did not render any cargo handling service. They refer to Section 65(105)(zr) which provides for taxation of service provided by a cargo handling agency in relation cargo handling services, which has been defined in section 65(23). The appellant submits that they are a manufacturer of gases and not a cargo handling ....
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....rice attracting central sales tax/VAT, the said transaction cannot be subjected to levy of service tax, by treating any part of the sale price as consideration for rendering any service. It is a settled position of law that the levy of service tax and sales tax/VAT are mutually exclusive. Thus, we agree with the submission of the appellant that no service tax was payable on the 'delivery charges' collected by the appellant as VAT was paid on the said 'delivery charges'. 9.1. In the instant case, we find that the delivery of the liquid gas at the customers' premises was in terms of the contracts for sale which stipulated such delivery of the goods to the customer's premises. Thus, we observe that delivery of liquid gas to the customers was integral to the contracts for sale and collection and delivery charges, though separately mentioned in the invoices, formed part of the consideration for sale of the goods and formed part of the sale price for the purpose of payment of sales tax/VAT, which the appellant duly discharged. 9.2. It is also observed that that the agreements entered into by the appellant with their customers with regard to liquid gas stipulated....
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.... of Rajeswari Colour Lab v. Commissioner of Commercial Taxes, Chennai [2020 (35) G.S.T.L. 75 (Mad.)], following the decision in the case of Imagic Creative Pvt. Ltd. (supra). 9.4. Following the ratio of the decisions cited supra, therefore, we hold that if a transaction has been subjected to sales tax/VAT as sale of goods then service tax is not leviable in respect of such transaction. In the instant case, since collection and delivery charges formed part of the sale price of goods on which central sales tax/VAT had been paid, we hold that service tax cannot be levied in respect of such collection and delivery charges. 9.5. Regarding the demand of service tax under the category of 'Cargo Handling Agency', we observe that the appellant were not a 'Cargo Handling Agency' and did not render any cargo handling service. Section 65(105)(zr) provides for taxation of service provided by a cargo handling agency in relation cargo handling services, which has been defined in section 65(23). The appellant have stressed that they are a manufacturer of gases and not a cargo handling agency. It is clear that the manufactured gas when despatched from the appellant's factory f....