2017 (8) TMI 437 - AT - Service Tax

Clearing and Forwarding Agent Service - case of appellant is that the service provided by them is not C&F service but packaging service - Time limitation - valuation - reimbursement expenses - includibility - Held that - the appellant had not filed any reply before original adjudicating authority - the issues have not been considered by the original adjudicating authority due to non co-operation of the appellant - In the interest of justice, the impugned order is set aside and the matter is remanded to the original adjudicating authority to give his finding on the issues - appeal allowed by way of remand.

Summary

Issues:
1. Inclusion of reimbursement charges in the assessable value for service tax.
2. Barred by limitation for demanding service tax.
3. Nature of service provided - Clearing and Forwarding Agent Service or packaging service.
4. Non-cooperation of the appellant during the proceedings.

Analysis:

Issue 1: Inclusion of reimbursement charges in the assessable value for service tax
The appellant argued that the demand for service tax was barred by limitation as the issue of includibility of reimbursement charges was not settled until a decision by the Larger Bench. They contended that most charges collected were reimbursement and should not be included in the value of services. They also cited a High Court decision striking down Rule 5 of the Service Tax Rules, 2006, as ultra vires, which, they argued, prevented the Revenue from including reimbursement in the assessable value. The Tribunal found that while doubts may exist regarding reimbursement, the nature of the service provided as a clearing and forwarding agent was clear. The appellant had paid some service tax previously, but discrepancies in registration and payments raised questions.

Issue 2: Barred by limitation for demanding service tax
The demand notice for service tax was issued for the period 2004-2005 and 2007-2008, invoking the extended period of limitation. The appellant's activities involved receiving bulk salt, repacking, and dispatching as per instructions. The appellant argued that the demand was time-barred due to unresolved issues until a Larger Bench decision. The Tribunal noted the appellant's lack of cooperation during the proceedings.

Issue 3: Nature of service provided - Clearing and Forwarding Agent Service or packaging service
The appellant contended that the service provided was packaging, not Clearing and Forwarding (C&F) service. They highlighted the specific activities undertaken for Tata Chemicals Ltd. and the contractual obligations related to stock maintenance, equipment provision, and expenses reimbursement. The Tribunal observed that the appellant's arguments regarding the nature of service and doubts about reimbursement did not absolve them from liability for service tax.

Issue 4: Non-cooperation of the appellant during the proceedings
The Revenue argued that the appellant had been non-cooperative, failing to respond to the show cause notice or attend the personal hearing. The appellant's lack of cooperation led to issues not being considered by the original adjudicating authority. The Tribunal set aside the impugned order and remanded the matter for a fresh determination on the unresolved issues due to the appellant's non-cooperation.

In conclusion, the Tribunal allowed the appeal by remand, emphasizing the need for a comprehensive review of the issues raised, including quantification errors and the nature of the services provided, due to the appellant's non-cooperation during the proceedings.