2008 (10) TMI 41 - AT - Service Tax

Commissioner (A) held that the consideration for unloading of iron & steel materials received from RINL plant at railway siding, loading, unloading of materials at yard is not to be added to the gross amount for the purpose of service tax as consignment agent since there is one contract for providing the service of consignment agent, respondent is liable to pay tax on the gross amount received as consignment agent - impugned order is not sustainable and set aside demand also not time-barred

Summary

Issues:
1. Whether handling and transport charges are to be included in the assessable value for the purpose of imposition of service tax.
2. Whether the demand for service tax is time-barred.
3. Imposition of penalty under the Amnesty scheme.

Analysis:
1. The main issue in this case revolves around whether handling and transport charges should be considered in the assessable value for service tax. The revenue contended that as per the composite contract, the respondent, acting as a consignment agent, should include handling charges in the gross amount subject to service tax. The revenue argued that the Commissioner (Appeals) erred in excluding these charges. However, the respondent relied on precedents like E.V. Mathai & Co. vs CCE, Cochin and Keralam Enterprises vs CCE & ST, Cochin, where it was held that transportation charges need not be added for service tax in similar situations. The Tribunal noted that in the present case, the contract was for consignment agent services, and the respondent was liable to pay service tax on the gross amount received. Consequently, the Tribunal set aside the Commissioner (Appeals) decision and allowed the revenue's appeal.

2. The second issue pertains to the time-barred demand for service tax. The revenue argued that the demand was not time-barred as a prior show cause notice (SCN) was issued for the period April-99 to Sept-2000 due to the respondent's non-filing of returns and late payment of service tax. The revenue contended that the respondent's failure to disclose non-payment of service tax on handling charges precluded the allegation of suppression. The Tribunal concurred with the revenue's argument, stating that the earlier SCN indicated the respondent's non-compliance, rendering the present order unsustainable. Consequently, the Tribunal allowed the revenue's appeal on this ground as well.

3. Lastly, the issue of penalty under the Amnesty scheme was addressed. The respondent had filed a necessary declaration under the Amnesty scheme in 2004, which absolved them from penal action for non-registration or non-payment of service tax. The proper officer accepted the declaration and directed the respondent to deposit the required amount. Given the acceptance of the declaration under the Amnesty scheme, the Tribunal concluded that no penalty should be imposed on the respondent. Therefore, the appeal was allowed, and the respondents were not held liable for any penalty under the Amnesty scheme.