2018 (8) TMI 1589 - AT - Service Tax

Classification of services - Man Power Recruitment Agency service or Cargo Handling Services? - services of loading, unloading storage materials, filing of raw materials in bulk tanks/tankers, inventory ,warehousing, storage, transportation etc. to Hindustan Unilever Ltd. in assessee s factory. Held that -The elements which are included within the scope of Cargo Handling Service are very much present. It is also seen that there is transportation involved in respect of cargo handled. Godown bulk tanker operations are also contracted to the assessee - there is no infirmity with the conclusions arrived at by both the original and the lower appellate authorities that the activities in of the nature of cargo handling service. For the purpose of ascertaining whether the amounts relating to the surviving demand would be in the nature of reimbursable expenses which would be exigible to service tax liability, the matter is being remanded to the adjudicating authority for the limited purpose of ascertaining and reworking of the tax liability. Extended period of limitation - Held that - It cannot be disputed that the assessees were discharging their tax liability under Man power Recruitment and Supply Agency Service, which was not objected to by the department till the point of audit - demand beyond the normal period of limitation set aside. Appeal allowed by way of remand.

Summary

Issues:
Classification of services under Cargo Handling Services, applicability of service tax liability, extension of limitation period for demand, reimbursable expenses, activities within factory premises vs. godown premises.

Classification of services under Cargo Handling Services:
The case involved a dispute regarding the classification of services provided by the assessee under Cargo Handling Services. The original authority and Commissioner (Appeals) classified the services as Cargo Handling Services, leading to a demand for differential tax liability. The advocate for the assessee argued that activities within the factory premises should not be classified as Cargo Handling Services, citing various judgments. The Tribunal analyzed the agreement between the assessee and HUL for both factory and godown, finding elements of Cargo Handling Services present. However, based on case laws, especially the High Court of Allahabad and other tribunal decisions, the Tribunal held that services within the factory premises did not fall under Cargo Handling Services, contrary to services at the godown premises which were classified as such.

Applicability of service tax liability and limitation period:
The Tribunal considered the applicability of service tax liability based on the nature of services provided. The advocate for the assessee argued that the demand was predominantly related to reimbursable expenses, invoking a judgment of the Hon'ble Supreme Court. The Tribunal remanded the matter to the adjudicating authority to ascertain the tax liability on reimbursable expenses based on the Supreme Court judgment. Additionally, the Tribunal addressed the extension of the limitation period for demand, noting that the assessee had been discharging tax liability under a different category without objection from the department until the audit, leading to the dismissal of the department's appeal seeking an extension of the limitation period.

Conclusion:
The Tribunal allowed the assessee's appeal by remanding the matter for reworking the tax liability on reimbursable expenses. The department's appeal seeking an extension of the limitation period was dismissed. The judgment clarified the classification of services under Cargo Handling Services, applicability of tax liability, and the limitation period for demand based on the nature of services provided at different premises.