2014 (3) TMI 229 - AT - Service Tax

Waiver of pre-deposit - GTA service or Cargo Handling Service - Penalty u/s 77 & 78 - Held that - as per work order dated 06.06.2005 and 26.07.2005 issued by M/s. Tayo Rolls Ltd.(purchase section)in favour of the Applicant namely M/s. Radha Transport Company, gives the discretion of job as transportation of iron ore from Tatanagar Goods Shed to M/s. Tayo Rolls Ltd.. Rate is including of loading and unloading from wagon. Note- The above rates include demurrage and warfrage charges. It is thus evident from impugned work order that transportation of iron ore is the principal activity of the Applicant and for the purpose of said transportation they are also doing the job of loading and unloading from the wagon - prima facie Applicant was providing transportation services, which is not covered within the purview of Cargo Handling Services . Hence, the Applicant has made out a prima facie case for waiver of pre-deposit of entire amount of Tax and penalty. Accordingly, pre-deposit of Tax and penalties is waived till the disposal of the Appeal - Stay granted.

Summary

Issues:
1. Whether the Appellant is liable to pay Service Tax under 'Cargo Handling Service' for providing loading and unloading services along with transportation of goods.
2. Whether the Appellant's activities constitute a composite service falling under GTA Service.

Analysis:
1. The Appellant sought waiver of pre-deposit of Rs.54,95,958/- and penalty of Rs.55.00 Lakhs under Section 78 and 77 of the Finance Act, 1944. The dispute arose from a show cause notice alleging liability for Service Tax under 'Cargo Handling Service' for providing loading and unloading services along with transportation of goods. The Appellant argued that transportation was the principal activity, and loading/unloading were incidental. Citing a Tribunal case, the Appellant contended that in such cases, Service Tax should not apply. The Commissioner's findings were reiterated by the Respondent.

2. The Tribunal examined work orders showing that the Appellant was engaged in transporting iron ore from a goods shed to a company's premises, including loading and unloading activities. The Tribunal noted that the transportation was the principal activity, and loading/unloading were not separately charged. Referring to a Board's Circular and previous Tribunal decisions, the Appellant argued that composite activities like transportation, loading, and unloading should not attract Service Tax under 'Cargo Handling Service'. The Tribunal also considered the essential character of cargo handling service, emphasizing that transportation was incidental to such services.

3. The Tribunal referenced various decisions where composite services involving loading, unloading, and transportation were classified as GTA Service. Based on the discussion and the facts presented, the Tribunal found that the Appellant's services primarily constituted transportation, not 'Cargo Handling Services'. Consequently, the Tribunal granted a prima facie case for waiving the pre-deposit of Tax and penalties until the appeal's disposal. The Stay Application was allowed, and the pre-deposit requirement was waived.

This detailed analysis of the judgment highlights the key legal arguments, interpretations of relevant laws and circulars, and the Tribunal's reasoning in determining the Appellant's liability for Service Tax under specific service categories.