2016 (8) TMI 1030 - AT - Service Tax

Refund - Clearing and forwarding agent loading and unloading of cargo demand of tax and interest on cargo service payment by respondent, service provider claim of refund for the period prior to the date the service became effective - reimbursement received from recipient of service is gross amount inclusive of service tax ? Held that - the recipient of service objected to payment of service tax liability prior to that date and reimbursed the service tax only for the period after that date. As such, it cannot be presumed that the gross amount received by the respondent always included the service tax appeal disposed off refund allowed - decided against Revenue.

Summary

Issues:
1. Whether the respondent is liable to pay service tax on loading and unloading charges of cargo.
2. Whether the respondent is entitled to a refund of service tax paid prior to the introduction of cargo handling service as a taxable service.

Issue 1: Liability for service tax on loading and unloading charges of cargo

The case involves the appeal by the Revenue against the Commissioner (Appeals-I), Raipur's order regarding the liability of the respondent in providing taxable services as a C&F Agent to Grasim Cement. The respondent was registered with the Department and had paid service tax on their services. The Revenue initiated proceedings to demand service tax on loading and unloading charges of cargo for a specific period. The respondent paid the demanded service tax amount along with interest. The Commissioner (Appeals) allowed the respondent's appeal, stating that the loading and unloading services are taxable under cargo handling services from 16.08.2002. The Appellate Authority affirmed this position, noting that the loading and unloading services are separate from the C&F Agency contract and are taxable under cargo handling services. The Department argued that the gross value received for such services should include service tax, thus no refund should be granted to the respondent. However, the Appellate Authority found that the respondent correctly discharged the duty liability under the cargo handling service category, rejecting the Revenue's appeal.

Issue 2: Entitlement to refund of service tax paid prior to the introduction of cargo handling service

The second issue pertains to the respondent's claim for a refund of service tax amounting to ?85,699 with interest, relating to the period before 16.08.2002, when cargo handling service was introduced as a taxable service. The Original Authority rejected the refund claim, stating that the respondent had discharged the duty liability correctly as a C&F Agent, covering all taxable activities. However, the Commissioner (Appeals) overturned this decision, allowing the refund claim. The Appellate Tribunal noted that the loading and unloading services were separate from the C&F Agency contract and became taxable under cargo handling services only from 16.08.2002. The Tribunal observed that the recipient of the service objected to paying service tax before that date and reimbursed the tax only for the period after the introduction of cargo handling service. Consequently, the Tribunal found no merit in the Revenue's appeal and rejected it, affirming the Commissioner's decision to grant the refund to the respondent.

This judgment clarifies the tax liability of the respondent concerning loading and unloading services, establishing that such services are taxable under cargo handling services from a specific date. It also addresses the entitlement of the respondent to a refund of service tax paid before the introduction of cargo handling service as a taxable category. The Tribunal's decision emphasizes the separation of loading and unloading services from the C&F Agency contract and upholds the Commissioner's ruling in favor of the respondent.