2017 (10) TMI 289 - AT - Service Tax

Classification of services - GTA service or clearing and forwarding agency service? - Valuation - GTA service - bonus - includibility - The risk of non-conforming coal being supplied was eliminated by inclusion of penalty and bonus clauses in the agreement - whether this bonus amount required to be included in assessable value? - Held that - we are able to conclude that clearing and forwarding agent service is one where a manufacturer or its representative engages such an entity to handle the place utility function in a commercial chain with the goods delivered to customers on instruction of that principal. Such a function can hardly be re-designed to describe the very reverse for delivery of procurements required by the principal. It would appear that the tax authority in its anxiety to deny the abatement that is the entitlement of provider of goods transport agency service sought to bring the activity under an omnibus head that being bereft of a specific definition could be resorted to for that purpose, failed to identify the various services that were elements of this composite contract. Some of those could possibly have been taxable services. Nevertheless, section 65A of Finance Act, 1994 lays down the principles that should guide classification of composite services. It would appear that transportation is the most prominent of these and the classification that was declared by the appellant cannot be faulted for its legality. More so, as the impugned order has failed to consider such an option. Nay, even the show cause notice is regrettably bereft of such a scrutiny. The activity of the appellant is not classifiable as clearing and forwarding agents service and the demand on that head must fail. Issuance of SCN - applicability of section 73(3) - Held that - If the entire tax and interest had been paid before the issue of notice, the claim of the appellant that notice should not have been issued cannot be denied - matter requires re-examination. The service is taxable as goods transport agency service and set aside the demand arising from re-classification of the service - regarding issuance of SCN, matter remanded to the original authority to determine whether section 73(3) is applicable. Appeal allowed in part and part matter on remand.

Summary

Issues:
1. Classification of service provided by the appellant as 'goods transport agency service' or 'clearing and forwarding agent service'.
2. Tax liability on bonus received by the appellant.
3. Applicability of penalty under section 78 of Finance Act, 1994.

Issue 1: Classification of Service:
The case involved a dispute regarding the classification of services provided by the appellant as either 'goods transport agency service' or 'clearing and forwarding agent service'. The appellant had been paying tax on the consideration received for transporting coal, availing abatement of 75%. The tax authorities sought to reclassify the service, leading to a demand for additional tax. The Revenue contended that the appellant's responsibilities went beyond transportation, resembling those of a clearing and forwarding agent. The Tribunal analyzed relevant definitions and precedents to determine the nature of the appellant's activities. It was observed that the appellant's role primarily involved transportation, not clearing and forwarding operations. The Tribunal concluded that the service provided by the appellant should be classified as 'goods transport agency service', rejecting the reclassification proposed by the tax authorities.

Issue 2: Tax Liability on Bonus:
Another issue in the case was the tax liability on the bonus received by the appellant. The tax authorities initiated proceedings to recover tax on the bonus amount, alleging that it had not been included in the assessable value. The appellant had already remitted a significant portion of the demanded amount. The Tribunal noted discrepancies in the impugned order regarding the remittance of tax and interest. It was highlighted that if the entire tax and interest had been paid before the notice was issued, the demand for the remaining amount might not be sustainable. The Tribunal acknowledged the appellant's concerns regarding the inclusion of bonus in the assessable value and emphasized the need for a thorough examination by the original authority to determine the tax liability on the bonus amount.

Issue 3: Penalty Under Section 78:
Regarding the penalty under section 78 of the Finance Act, 1994, the adjudicating authority had imposed penalties for irregular and delayed payment of tax. The appellant challenged the penalties, primarily focusing on the reclassification issue. The Tribunal's analysis of the reclassification dispute led to the conclusion that the penalties imposed based on the reclassification were not justified. The Tribunal's decision to classify the service as 'goods transport agency service' impacted the applicability of penalties under section 78. The matter was remanded to the original authority for further examination, considering the Tribunal's findings on the classification of services provided by the appellant.

In conclusion, the judgment by the Appellate Tribunal CESTAT MUMBAI addressed the classification of services provided by the appellant, the tax liability on bonus amounts, and the applicability of penalties under section 78 of the Finance Act, 1994. The Tribunal ruled in favor of classifying the service as 'goods transport agency service', rejected the reclassification sought by the tax authorities, and emphasized the need for a detailed assessment of the tax liability on bonus amounts. The penalties imposed were also subject to review based on the reclassification decision.