TaxTMI 
TaxTMI 
2026 (6) TMI 451
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....r for recovery of the same from the Noticee. ii. I further order for recovery of interest on the amount mention in Para-6(i) above, at the appropriate rate for the relevant period till the payment of said tax, from the Noticee under Section 75 of the Finance Act, 1994 read with Section 174 of CGST Act, 2017 as discussed above. iii. I impose a penalty of Rs.40,57,763/- (Rupees Forty Lakhs Fifty-Seven Thousand Seven Hundred Sixty-Three Only) upon the Noticee under section 78 of the Finance Act, 1994, as discussed above. Further I give an option to the party to pay 25% penalty of the demand confirmed in Para -6(i) above, as provided in the Section 78-of the Act, if Service Tax and Interest as confirmed above is paid within a period of 30 days of the date of receipt of this order. Further the benefit of reduced penalty shall be available only, if the amount of such reduced penalty is also paid within 30 days. iv. I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand only) upon Noticee under Section 77(1)(a) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017 as discussed above. v. I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand....
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....ior Accounts Officer Food, Aligarh and Agra. The services so provided were exempt as per Notification No.25/2012 dated 20.06.2012, they were also provided certain documents such as copy of Form 26AS, Balance Sheet and Profit & Loss account for the F.Y. 2016-17 and 2017-18 along with the said letter. Other documents as called for by the revenue were not coming forth. 2.5 In absence of requisite documents, revenue authorities were proceeded to compute the service tax short paid, and the tax liability was calculated as detailed in table below:- Period Amount Received Taxable Value (Highest of 2,3,4) Service Tax Letter dated 25.07.2021 26 AS CBDT Data @ % Payable 1 2 3 4 5 6 7 2016-17 27051752 27051752 27051752 27051752 15 4057763 2.6 As appellant had not provided the documents, nor filed any ST-3 returns during 2016-17 while providing taxable services without obtaining registration from the department, it was alleged that appellant has willfully suppressed the facts of providing taxable services and the consideration received against such services from the department with intend to evade payment of service tax.....
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....recipient-Regional Account Officer (Food), Aligarh and Account Officer Food and Civil Supplies, Agra Region, copy of work order dated 03.10.2016 appointing appellant for handling and transportation of Food Grains under PDS along with copy of agreement were also provided. ⮚ From the registration certificate of the vehicles used, it is evident that appellant is the owner of the vehicles used for transportation of the goods and he is providing such services as Goods Transport Operator which are covered by the negative list of services as per Section 66D (p)(i). Hence, he was not required to pay any service tax in respect of these services. ⮚ Further, the services provided by the appellant are in respect of transportation of Food Grains and other agricultural produced, these services are also exempt from payment of service tax under entry No.21 of Notification No.25/2012-ST dated 20.06.2012. ⮚ Even if services on loading/unloading, packing etc. are to be considered as support services then also the same were fall within the negative list as per Section 66D(p)(v). ⮚ As the appellant has provided the services which are eithe....
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.... the factual status of the activities undertaken by the appellant, relevant documents pertaining to the activities done by them are required to examined. The appellant has provided copy of agreement No. 297/Swi./Rai. Pariwahan/2016-17 dated 28.05.2017, 2901/Swi./Rai. Pariwahan/ 2016-17 dated 25.03.2017, 2925/Swi./Rai.Pariwahan/2016-17 dated 25.03.2017, 2930/Swi. /Rai.Pariwahan/2016-17 dated 25.03.2017, 2970/Swi./Rai.Pariwahan/2016-17 dated 28.03.2017, 2926/Swi./Rai.Pariwahan/2016-17 dated 25.03.2017 with Regional Food Controller, Agra Region, Agra and Copy of registration of Transport Department for thirteen vehicles owned by the appellant. 4.4.3 On perusal of the agreements, it is observed that these agreement pertains to work of handling including transport Government food grains, Sugar Gunny Bags etc.. Further on perusal of details of the agreements, it is observed that it contains provisions as under: (i) The details of No. of trucks submitted by the contractor shall be supported by the original/certified copy of the registration certificate. (ii) The handling & Transport contractor or his authorized agent will be responsible for making adequate arran....
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....or any other stocks, keep himself in touch with the centre incharge daily for the information of arrivals, placement of wagons and regarding receipts and dispatches of food grains, handling work for receipt and dispatch at Railway Station, own arrangement for weighing scales and weights, taking out bags from godowns or Khatties including lifting the bags from the place of stacking etc. and were responsible for any loss/damage to the goods handled and transported by them. 4.4.5 It is observed that the appellant was required to deploy vehicles and other activities as per agreement like employing labours for handling of goods, placement of wagons and receipts and dispatches of food grains and were responsible for any loss/damage of goods transported was upon the appellant. Therefore, their claim that they have operated as transport operator only by providing vehicles and not provided any other services related to transportation, is not proper as the appellant was required to perform other works related to handling of goods and also to make arrangements for handling of the goods for transportation by railway wagons. 4.4.6 Further, the appellant has submitted that they....
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....llowing documents: 1. Invoices/Bills raised for different activities as under: (i) Handling charges, (ii) Transportation Charges, (iii) Charges claimed for arranging Railway Wagons. (iv) Any other activity pertaining to agreement with Regional Food Controllers 2. Ledger A/c for different activities undertaken as Handling and Transport contractor. However, the appellant did not provide any details as required vide the email. Therefore, further ascertainment of nature of activities of the appellant was based on the available details in the agreement submitted by them. The activities mentioned in the agreement reveals that the scope of the works done by the appellant involves not only transportation of goods by road but also other incidental activities of handling of the goods like making adequate arrangements for sufficient labours and transport vehicles, information of arrivals of goods, placement of wagons and regarding receipts and dispatches of food grains and other works at the centre, arrangement for weighing scales and weights, taking out bags from godowns or Khatties including lifting the bags from the place of st....
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....authorized agent will be responsible for making adequate arrangements for sufficient, labours and transport vehicles in order to complete the work assigned to hi as quickly as possible according to the requirements of the staff deputed for this purpose at the centre, if Govt. is put to any loss due to Contractor's failure to do so he will have to make the loss good. .... 15. The contractor will also be responsible for any loss or damage done to Government stocks by his staff or the labour of truck owners or drivers etc., engaged by him for the work upto the stage of delivery." From the perusal of the above conditions as per the agreements it is evident that the appellant was required to use only trucks for transportation of food grains, registration number of which along with registration certificate was produced by him to the concerned authorities as security at the time of agreement. Further he could not have sub-contracted, the part of contract to anybody else. It is not even shown in a single case that the appellant had issued a consignment note for the transportation of these foods grains as per these agreement. Thus the finding recorded by the Commissioner (Appeal....
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.... under a consignment note, which should have particulars as prescribed in explanation to rule 4B- Consignment note issued by GTA represents its liability to: (a) transport consignment handed over to it to destination, (b) undertake delivery of same to consignee, and (c) temporarily store it till delivery-Merely a bill issued for transportation of goods cannot be treated as consignment note-Therefore, transportation of goods by individual truck owners under fortnightly bills without issue of consignment note, GR's & billties etc. as prescribed in rule 4B would be simple transportation and not service of GTA. This appeal is squarely covered by the above mentioned decision and hence the appellant has no liability at all to pay the Service Tax. Moreover, the adjudicating authority in Para 5.1.4 of the impugned order has discussed Rule 2(1)(d) of the Service tax Rules, 1994 and was of the opined that "in terms of said rule, if the consignee or consigner is any corporate establish by or under any law, is liable to pay tax. But it is a matter of fact and the party has the onus to establish the said factual position by producing evi....
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.... Tax on services of GTA vis-à-vis Rule 2(1)(d)(v) ibid. After hearing both sides, this Bench has held as under: - "3. Heard both sides. It has been consistently contested by the assessees that services were not being provided to them by the Goods Transport Agency but by individual truck owners/lorry owners. Before the lower appellate authority they have also provided written submissions in support of their above submission. It has been held by the Tribunal in the case of Lakshminarayana Mining Co. v. CST, Bangalore - 2009 (16) S.T.R. 691 (Tri.-Bang.) and in the case of CCE, Guntur v. Kanaka Durga Agro Oil Products Pvt. Ltd. - 2009 (15) S.T.R. 399 (Tri-.Bang.) that transport undertaken by individuals owning and operating lorry and trucks is not subject to service tax as in these cases services has not been provided by Goods Transport Agency Service. Following the ratio of the above decisions, I hold that the appellants are not liable to Service tax and imposition of penalty. I, therefore, set aside the impugned orders and allow these appeals." 11.2 It appears that the Revenue filed an appeal before the Hon'ble jurisdictional High Court of Madras against the ....
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....t. This Entry reads as under :- " 'Cargo Handling Service' means loading, unloading, packing or unpacking of cargo and includes cargo handling services provided for freight in special containers or for no containerized freight, services provided by a containers freight terminal, for all mode of transport and cargo handling service incident to freight, but does not include handling of export cargo or passenger baggage or mere transportation of goods." 6. The High Court, on the interpretation of the aforesaid Entry, has observed that two conditions for considering any service to be 'Cargo Handling Service' need to be satisfied, namely; (1) there must be a cargo i.e. a packed or unpacked commodity accepted by a transporter or carrier for carrying the same from one destination to another. It is only after the commodity becomes a cargo, its loading and unloading at the freight terminal for being transported by any mode becomes a cargo handling service, if it is provided by an independent agency and; (2) the service provider must independently be involved in loading-unloading or packing-unpacking of the cargo. 7. The aforesaid meaning given by the High Court wh....
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....ich are liable to tax under this category are the services provided by cargo handling agencies who undertake the activity of packing, unpacking, loading and unloading of goods meant to be transported by any means of transportation namely truck, rail, ship or aircraft. Well known examples of cargo handling service are services provided in relation to cargo handling by the Container Corporation of India, Airport Authority of India, Inland Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services. xx xx xx 15. Another doubt raised in relation to cargo handling services is that whether individuals undertaking the activity of loading or unloading of cargo would be leviable to service tax. For example, if someone hires labour/labourer for loading or unloading of goods in their individual capacity, whether he would be liable to service tax as a cargo handling agency. It is clarified that such activities will not come under the purview of service tax as a cargo handling agency." The aforesaid clarification given by the Department itself negates the case....
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