TaxTMI 
TaxTMI 
2024 (3) TMI 1512
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....facts and circumstances of the case, the said application is allowed and the averments made therein are taken into records for consideration of the present appeal. 3. Brief facts of the case, leading to this appeal, are summarized as under: 3.1 The respondents herein, M/s. Agarwal Packers & Movers Limited are engaged inter-alia, in the business of transportation of commercial and household goods. In the business of transportation of commercial goods, they receive such goods in packed form from various companies for the purpose of transportation to different locations. In such cases, as the recipient of service, the corporate entities discharge the service tax liability under the Reverse Charge Mechanism, in terms of Notification No. 35/2004-ST dated 03.12.2004 (upto the period 30.06.2012) and thereafter, under Rule 2(1)(d) of the Service Tax Rules, 1994 read with Notification No. 30/2012-ST dated 20.06.2012 (from 01.07.2012 onwards). Classification/taxability of provision of such service is not under dispute in the present case. 3.2 The other area of transportation is that of the household goods, which is the subject matter of dispute involved in the case in ha....
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.... of cargo handling service has been widened to specifically include the services provided by packers and movers, wherein they undertake transportation of goods along with packing services. 3.6 The matter arising out of the above referred SCNs (three in numbers), was adjudicated by the Principal Commissioner of CGST & Central Excise vide the impugned Order dated 26.09.2017, wherein the proposals made in the SCNs were dropped. The Original Authority has held that the activities of transportation of household goods undertaken by respondents is correctly classifiable under 'Transportation of Goods by Road' service i.e., Goods Transport Agency (GTA) service and not under the taxable entry of 'Cargo Handling Services'. For arriving at such a conclusion, the learned Adjudicating authority has observed as under: (a) The primary activity of the respondents is of transportation of goods and activities such as packing, un-packing, loading, unloading etc., are intermediate or ancillary to the main activity of transportation. (b) Circulars dated 6.8.2008 and 5.10.2015 are squarely applicable to the present facts and the department cannot take contradictory stand to ch....
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....lved in this appeal is from April, 2009 to March, 2015. The statutory provisions, relevant for consideration of the present dispute with regard to classification of appropriate category of service are extracted herein below: "65(105) "taxable service" means any service provided or to be provided,- .... (zzp) to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage;" (zr) to any person, by a cargo handling agency in relation to cargo handling services; 65(50b) "goods transport agency" means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called; 65(23) "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes,- (a) cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight; and (b) service of packing together with transportation of cargo or goods, with or withou....
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....ind that the services provided by the respondents are confined to transportation of household goods. For accomplishing the purpose of such business, the respondents are essentially engaged by the individuals or by corporates (for their employees) for transportation of household goods from one location to another. The essential characteristics of the contracts entered into between the respondents and the recipients of such service are that the customers of the respondents are interested in getting their goods transported from one location to the other and to ensure that the goods are being properly handled, they availed the other facilities such as packing etc. On careful reading of various documents/records, we find that the principal objective in provision of the service in question is that of transportation of household goods and the other services are incidental and ancillary to such main object. It is also a fact, not under dispute that the respondents had issued the 'consignment note' for transportation of the goods and are also registered with the Service Tax department under the taxable category of GTA service. The activities undertaken by the respondents clearly demonstrate....
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....ng principle is to identify the essential features of the transaction. The method of invoicing does not alter the single composite nature of the service and classification in such cases are based on essential character by applying the principle of classification enumerated in section 65 A. Thus, if any ancillary/intermediate service is provided in relation to transportation of goods, and the charges, if any, for such services are included in the invoice issued by the GTA, and not by any other person, such service would form part of GTA service and, therefore, the abatement of 75% would be available on it. 4. Issue 2: GTA providing service in relation to transportation of goods by road in a goods carriage also undertakes packing as an integral part of the service provided. It may be clarified whether in such cases service provided is to be classified under GTA service. Clarification: Cargo handling service [Section 65 (105) (zr)] means loading, unloading, packing or unpacking of cargo and includes the service of packing together with transportation of cargo with or without loading, unloading and unpacking. Transportation is not the essential character of cargo hand....
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.... the clarification furnished by the superior authorities. In the case of Collector of C. Ex., Vadodara v. Dhiren Chemical Industries - 2002 (139) E.L.T.3 (S.C.), the Hon'ble Supreme Court have held as under: "9. We need to made it clear that, regardless of the interpretation that we have placed on the said phrase, if there are circulars which have been issued by the Central Board of Excise and Customs which place a different interpretation upon the said phrase, that interpretation will be binding upon the Revenue." In view of the settled position of law, since the learned Adjudication authority has dropped the show cause proceedings initiated against the respondents by relying upon the circulars issued by CBEC, it cannot be said that such order passed by him is not legal and proper. 10.1 We find that the issue arising out of the present appeal is no more res integra in view of the Order dated 21.08.2017 of this Tribunal in the case of DRS Logistics Pvt. Limited Vs. Commissioner of Service Tax, Delhi-I - 2017 (7) G.S.T.L. 352 (Tri. - Del.), affirmed by the Hon'ble Supreme Court, reported in 2018 (18) G.S.T.L. J172 (S.C.). The relevant paragraphs recorded in the order ....
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....ision in the case of Drolia Electrosteels Pvt. Ltd. (supra) cited by the ld. Advocate is squarely applicable to the facts of the present case, wherein by relying on the circular dated 6-8-2008 (supra), the Tribunal has held that the service provided by M/s. Hira Industries (appellant therein) merits classification under the GTA service and not under Cargo Handling Service." 10.2 In another case of DRS Dilip Roadlines Pvt. Ltd. and Others Vs. CC & CE, Hyderabad - 2019-TIOL-1505-CESTAT-HYD, on the identical set of facts, the Co-ordinate Bench of the Tribunal, by placing reliance on the above order of the Tribunal and the judgement of the Hon'ble Supreme Court (supra) has allowed the appeal, holding that the services rendered by the appellant should be classifiable under Goods Transport Agency service and not Cargo Handling service. 11. With regard to the issue relating to collection of surplus charges/surcharges and collection of service tax at full rate, without abatement on value of service, the learned Adjudicating authority has considered various evidences, including the submissions made by the respondents that the surplus charges etc., were charged for various expens....