2009 (6) TMI 55 - AT - Service Tax

Godown rent - C&F Agency Service - Storage & warehousing Service date of taxability - the appellant has provided godown facility to M/s. Chambal Fertilizers in terms of two separate agreements for two different activities namely C&F service and warehousing service. - There is also no dispute that C&F service has been taxed and the appellant is discharging its liability. The only dispute being godown rent received after 16.8.02 whether taxable by Review Order while that was not subject matter of order dt.11.9.06 reviewed. held that since the SCN has been issued for the period prior to 11.9.2009 and after that period the reply submitted by the appellant might have filed reply to the later SCN matter kept open

Summary

Issues:
1. Taxability of godown rent received by a Clearing & Forwarding Agent under the category of Storage and Warehousing.
2. Validity of the review order bringing godown rent received before and after a specific date under the ambit of tax.
3. Applicability of a separate show cause notice issued for taxing godown rent received after a specific date.

Analysis:

Issue 1: Taxability of godown rent under Storage and Warehousing category
The appellant argued that godown rent should not be liable to service tax under C&F Agency as a specific entry for taxing rental income from godown was introduced into the statute book from a certain date. However, it was noted that godown rent or warehousing rent had been made taxable from a specific date. The definition of 'storage and warehousing' clearly included such activities. The appellant had separate agreements for C&F service and warehousing service with a company, and while the C&F service was being taxed, the dispute arose regarding the taxability of godown rent received after the specific date.

Issue 2: Validity of the review order
The Adjudicating authority initially concluded that godown rent was not taxable but later, through a review order, brought both pre and post specific date godown rent under the tax ambit. The review order was challenged on the grounds of unsustainability due to a separate show cause notice issued for taxing godown rent after the specific date. The review order was defended on the basis that godown rent is an incidental income received while providing services by a C&F Agent.

Issue 3: Separate show cause notice
A separate show cause notice was issued to tax godown rent received after the specific date. The appellant highlighted the issuance of this notice and the subsequent revision order that taxed godown rent received both before and after the specific date. The need for consideration of the appellant's reply to the show cause notice in the proceedings initiated by it was emphasized, especially if the reply related to the period after the specific date.

The Tribunal directed both parties to advise on whether adjudication had been made in terms of the show cause notice issued for taxing godown rent received after the specific date. The possibility of utilizing the appellant's reply lying in the records of the Commissioner in the revision proceedings was also mentioned for further consideration.