2018 (1) TMI 1088 - AT - Service Tax

Classification of services - transportation of goods - whether taxable under Cargo Handling Service or Goods Transport Agency Service? - Held that - Since the appellant, in this case, has not specifically objected to the findings of the adjudicating authority that it has not provided two categories of services, we are of the view that the services provided by the appellant should merit consideration as cargo handling service. Extended period of Limitation - Held that - suppression, misstatement etc. cannot be levelled against the appellant, justifying invocation of the extended period of five years for issuance of the SCN - demand upheld for normal period only. Penalty - Held that - appellant entertained the bonafide belief that the services provided by it will fall under the GTA service - the penalty imposed in the impugned order should be viewed in terms of Section 80 of the Finance Act, 1994, and set aside. Appeal allowed in part.

Summary

Issues: Classification of services under GTA service or cargo handling service; Barred by limitation of time.

Classification of services under GTA service or cargo handling service:
The appeal challenged an order upholding the demand for service tax on the ground that services provided by the appellant should be classified as cargo handling services instead of GTA services. The appellant argued that the main activity was transportation of goods, with cargo handling services being incidental to freight. The appellant relied on a Tribunal decision to support their stance. The Department contended that the contract clearly specified rates for transportation, loading, and unloading activities separately. The adjudicating authority found that the appellant provided services beyond GTA services, such as loading/unloading of wagons, stacking, and de-stacking, for which separate charges were applied. The Tribunal concluded that the services provided by the appellant should be considered as cargo handling services due to the lack of specific objections raised by the appellant. However, the Tribunal ruled that the service tax demand should be limited to the normal period of limitation, as suppression or misstatement could not be proven against the appellant, thus rejecting the invocation of the extended period of five years for issuing the show cause notice.

Barred by limitation of time:
The appellant argued that the proceedings initiated by the Department were time-barred, as the show cause notice was issued beyond the normal period of limitation provided under Section 73 of the Finance Act, 1994, for the disputed period of 2003-07. The Tribunal concurred with the appellant's argument and restricted the service tax demand to the normal period of limitation. Additionally, considering the appellant's genuine belief that the services provided would fall under the GTA service category, the Tribunal set aside the penalty imposed in the impugned order, viewing it in terms of Section 80 of the Finance Act, 1994. Consequently, the Tribunal directed the original authority to quantify the service tax demand payable by the appellant within the normal period of limitation, ultimately disposing of the appeal in favor of the appellant.