TaxTMI 
TaxTMI 
2026 (7) TMI 9
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....ed that the above two parties were providing services to the appellant under Handling and Transportation (H & T) contract but while issuing invoices, they were splitting charges in two parts i.e. one for Cargo Handling Services on which they were paying service tax and the other for GTA Service. Instead of paying service tax on GA service, they had put a remark in their invoices that the service recipient would be paying service tax on reverse charge basis, (RCM basis) i.e. appellant in these cases. 1.2 On the basis of records of above two parties for the period from 11.02.2005 to March 2009, it revealed that they have provided Goods Transport Agency Service valued at Rs. 4,19,78,297/- (abated value) on which service tax of Rs. 47,71,487/- was liable to be paid by the appellant on reverse charge basis. Further, another show cause notice dated 26.08.2011 was issued to them for demanding service tax of Rs. 347001/-. for the period from 01.04.2009 to 31.03.2010. 1.3 The show cause notice dated 04.03.2010 was adjudicated by the Additional Commissioner vide order dated 17.08.2012 wherein, he confirmed service tax demand of Rs. 47,71,487/- against the appellant along with interest ....
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.... availing any abatement and thus, there is no short payment of service tax. d. Had they paid service tax on GTA service on Reverse Charge Basis, they would have been entitled to Cenvat Credit on the said service tax amount. The situation is therefore, revenue neutral which fact has completely been ignored by the Learned Commissioner (Appeals). If same criterion is adopted for classification of a part of their output service under GTA services then, they have already paid excess service tax to the Government as against present service tax liability confirmed on them. e. Their H&T contractors have wrongly bifurcated service in two parts one for cargo handling service and other for GTA services, to lower their tax liability by shifting to the appellant. The appellant prayed for setting aside the impugned order and allowing their appeals. 3. Learned Advocate argued that issuance of consignment note is must for classification of a service under Goods Transport Agency category. Appellant entered into a composite Cargo Handling Service Contract with their clients for which, they had engaged above two parties as contractors. The service provided by above two contrac....
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....ling Service into Transport Services and other services by vivisecting the contract entered into by the appellant with H & T contractor M/s Durgesh Shukla, for charging service tax under GTA service on RCM basis. CBEC itself vide their circular dated 08.01.2002 has clarified that storage, warehousing keeper is required to pay tax under the category of Cargo Handling Service only. Thus, it cannot be held that providing the Cargo handling Service, in which the transportation of goods is also an ancillary activities, can be vivisected into transportation service and other service, such as loading and unloading of the goods, in this case". He pleads that the said decision is squarely applicable in the facts of the present case and therefore, service tax demands confirmed on them be set aside by allowing their appeals. He also relied on the following decisions: * Aims Industries Ltd Vs. C.C.E & S.T-Vadidara-i (2024 (1) TMI 721-(Tri- Ahmd.) * Bhoramdeo Sahakari Shakhar utpadan Karkhana Vs. C.C.E Raipur [2019 (10) TMI 1416- (Tri- Delhi] * Ultra Tech Cement Ltd. Vs. C.C.E, Kolhapur [2017 (11) TMI 297- (Tri- Mumbai] * Choice Laboratories Ltd. Vs. Union....
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....e XXI of the Tender document specifies services to be rendered by the contractor which are categorized into Import operations, export operations, Factory stuffing and de-stuffing, Local transport, General operations and Incidental operations. (A) Under Import operation, activities to be done in brief are:- a) The contractors shall provide suitable type of road vehicles in good working condition for transportation of containers. b) It shall take over loaded containers placed on such road vehicles after due inspection of locks/seals and the condition of the containers and on completion of all other formalities including preparation of equipment interchanged report. The transportation shall be done within the prescribed time limits. c) The contractors shall make available the required number of vehicles and shall arrange taking over all containers from the port. The contractor shall provide transport facilities to the Customs officials, where it becomes necessary to move the container under the Customs escort at no extra remuneration. d) On reaching the container depot, contractor shall hand over container to the ICD authorities duly satisf....
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....sion of causal labour of smooth handling operations. Cumulatively, services performed by H&T contractors seem to be covered under Cargo Handling Services against which contractors have issued monthly invoice showing consideration amount in two parts i.e. one pertaining to cargo handling and the remaining towards transportation charges. They paid service tax on cargo handling portion only and shifted the service tax liability on GTA operation on the service recipient, on RCM basis. 5.3 We find that the facts in the present case are squarely covered by the decision of CESTAT Delhi in appellant's own case, decided Vide Final Order No. 50600 of 2019 dated 02.04.2019. Wherein, it was held that revenue cannot split Cargo Handling Services into transport services and other services while vivisecting the contract entered by the appellant with H & T contractor. It cannot be held that providing Cargo Handling in which transportation of the goods is also ancillary activity, can be vivisecting in transportation services and other services such as loading and unloading of the goods. The relevant paras of the said decision are reproduced below:- "7. We have heard parties and consider....
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....ractor M/s Durgesh Shukla, for charging service tax under GST category on the RCM basis. We also find that in this case the CBEC itself vide their Circular dated 8.1.2002 has clarified that for storage, warehousing keeper is required to pay tax under the category of cargo handling services only. We also find that in this case H&T contractor has not issued any consignment note to the appellant and, therefore, would not be covered as Goods Transport Service (GTA) which has been held in the various decisions of Hon'ble Tribunal in the cases mentioned at para-4.1 above. Accordingly, it cannot be held that providing the cargo handling service in which the transportation of goods is also an ancillary activity, can be vivisected into transportation service and other services, such as loading and unloading of the goods, in this case agricultural produce. We also find that the Commissioner in his order No. 21-25/Commr/ST/BPL-I/2013 dated 28.6.2013 has rightly held that the benefit of exemption Notification No. 10/2002-ST dated 1 August, 2002 is available to the notice. The notification exempts the taxable service provided by "any person by a cargo handling agency in relation to, agricultura....