TaxTMI 
TaxTMI 
2026 (2) TMI 604
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....and Service Tax of Rs.7,79,168/- alongwith applicable interest and imposition of penalties under various Sections. The calculation of Service Tax liability is a per Para 7 which is reproduced as under:- SI. No. Financial Year Taxable value as per ITR (in Rs.) Service Gross Taxable value as per ST-3 return (Rs.) Short Amount declared in ST-3(in Rs.) Rate of Service Tax (including cess) Short payment/Not paid of Service Tax (including cess)(in Rs.) 1 2014-15 (Oct'14 to Mar'15) 11468448 9875506 1592942 12.36% 196888 2 2015-16 21738779 18916896 2821883 14.50% 409173 3 2016-17 22925392 21771344 1154048 15% 173107 Grand Total 56132619 50563746 5568873 779168 4. Reply to the SCN was filed and vide Order-In-Original dated 07.01.2022, the demand as proposed in the SCN was confirmed alongwith applicable interest and penalty of equal amount was imposed under Section 78 of the Finance Act, 1994. Penalty of Rs.10,000/- was imposed under Section 77(1)(c) of the Finance Act, 1994. Late fees of Rs.2,600/- were also imposed for the Return filed for the period from April ....
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....for Rake Movement at CHP Tanda for year 2016-17" at NTPC- Tanda, or any other work as assigned by Engineer-In-charge. You will deploy adequate numbers of persons to carry out the job smoothly and provide substitute in case of absenteeism, so that the work is not hampered. You will carry out personal supervision to see that the work is going on smoothly." 10. This clearly shows that the Appellant was awarded the contract with specific directions that in executing the work awarded through this contract, he was required to deploy Ex-Railway staff for rack movement and was categorically instructed to deploy adequate number of persons to carry out the job smoothly and to provide substitute in case of absenteeism, so that the work is not hampered. This contract is out and out with specific direction to the awardee of the contract. 11. In my considered view, the services provided by the Appellant/Assessee in respect of the work order awarded to him under the contract would appropriately be classified under the category of 'Manpower Recruitment/ Supply Agency Services'. There is no ambiguity in the work order and the instructions are very very crisp and clear and there is no scope fo....
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....rtment and no investigation or corroboration with the facts, has been referred to in the SCN. The SCN is based on presumption that the entire amount mentioned in the ITR of the party for the F.Y. 2016-17 pertains to taxable service charges received by them from their clients and is liable to service tax. Thus, I proceed to examine the case based on documents submitted by the party alongwith their submission. (ii) I find that the party has declared receipt against sale of services amounting to Rs.62,561,902/-in the profit and loss account of their balance sheet of the F. Y. 2016-17 and total amount credited Rs.62,61,899/- 'In their 26-AS for the year 2016-17 which is tallied with the amount mentioned in the SCN. As per the profit and loss account, out of receipt of Rs.62,61,902/- the party has received Rs.40,67,157/- against Business Auxillary services while Rs.21,94,745/received against manpower supply services against which the instant demand has been raised. Further, as per 26-AS, entire amount has been received by the party from M/s ITC Limited. Besides it, the party has also provided copy of invoices raised by them to M/s International Tobacco Company Limited (ITC ....
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....entire demand of Rs.3,29,212/- raised in the instant SCN on value of Rs.21,94,745/- is liable to be dropped and accordingly no Interest and penalty is liable to be imposed upon the party on the sald amount of dernand under section 75 and 78 of Finance Act, 1994 respectively. 13. Learned Departmental Representative made the Bench to go through the work order once again and in the heading scope of work in Para 2 it was pointed out as under:- "2. All materials to be brought by you for incorporation in the work shall be strictly in accordance with the relevant clauses of technical specifications." 14. Further, he also made the Bench to go through the heading total contract value of the Award letter and the same is reproduced as under for ready reference:- TOTAL CONTRACT VALUE 1. The total contract value for this work is Rs.49,14,384.00(Rupees Forty Nine Lacs Fourteen Thousand Three Hundred Eighty Four Only.) Service Tax extra based on your agreed rates for a period of 12 months (as per BOQ enclosed). This will include compliance of all statutory requirements as prescribed under various enactments. 2. Your rates are inclusive of all taxes (except Serv....
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..... 18. 'Cargo Handling Service' has not been defined in the Act but is defined in Circular No. B11/1/2002-TRU, dated 01-082002 as the services of transporting coupled with loading, unloading, packing, unpacking can be called as 'Cargo Handling Service' if those are done by the authorities as that of Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations etc. Apparently and admittedly the appellant herein is none of these kinds of companies. Hon'ble Supreme Court also while discussing the case of Sushil & Company [2016 (42) STR 625 (SC)] has appreciated the said circular in the following words: "Mr. Kavin Gulati, learned senior counsel appearing for the respondent-assessee, has drawn our attention to a judgment of the Delhi Bench of the Tribunal in "J. & J. Enterprises v. Commissioner of Central Excise, Raipur," reported in 2006 (3) S.T.R 655 = 2005 (186) E.L.T 189 (Tribunal). In this judgment, almost similar services provided by the assessee were held not to be 'Cargo Handling Services'. In arriving at such a conclusion, the Tribunal had referred to the clarificatory instructions, being F. No. B11/1/2002-TRU....
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....ice in question in the said case was whether it was a mining service but the outcome is relevant for the present adjudication wherein it was held that the aforementioned activity is an activity as that of transportation of goods. The Hon'ble Apex Court in the said decision has held as follows: "3. The issue involved in the present appeal is whether the goods i.e. coal transported by the respondent - Singh Transporters from the pit-heads to the railway sidings would fall within taxable service as defined under Section 65(105) (zzzy) of the Service Tax Act of 1994 (for short "the Act") or as defined under Section 65(105)(zzp) of the Act. xx xx xx 6. Be that as it may, even if the relied upon judgment in the case of Anjuna Carriers (supra) is of no consequence to the present case, we are of the view that the activity undertaken by the respondent i.e. transportation of coal from the pitheads to the railway sidings within the mining areas is more appropriately classifiable under Section 65(105)(zzp) of the Act, namely, under the head "transport of goods by road service" and does not involve any service in relation to "mining of mineral, oil or gas" as provided....
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....ges Pvt. Ltd. Vs Commissioner of Cz. Ex., Belgaum [2007 (6) STR 148 (TriBang)] the Tribunal held that demand cannot be confirmed in accordance with deleted provisions. "4. On a careful consideration, we are not agreeable with the contentions raised by the Commissioner in the written submissions and the learned JDR. The proviso to Section 73 of the Act was promulgated by Finance Act 2004 but adding proviso to Section 73 of the Central Excise Act, which is parimateria to Section 11A of Central Excise Act. The ingredients of the said proviso have not been invoked in the show cause notice to demand duty for larger period. The contention of the Revenue that the demands pertaining to period earlier to promulgation of the new Section 73 should be confirmed in terms of the deleted provisions of Section 73, is not sustainable. The Larger Bench judgment rendered in the case of Atma steel (supra) has clearly held that once a new provisions has been brought into existence, then at the time of issue of show cause notice the new provisions as is in existence should be complied. The show cause notice has been issued in the present case on 28-7-2005, therefore, the amended provisions in t....