2023 (9) TMI 649 - AT - Service Tax

Cargo Handling service - Exemption to certain services provided to GTA - Benefit of N/N. 01/2009-ST dated 05.01.2009 denied - appellant have not mentioned the name and date of consignment note in the invoice issued by them for providing manpower supply service to the GTA service provider - period of demand is for October 2007 to March 2009 - demand of service tax on Cargo Handling service - HELD THAT - The retrospective amendment came into effect only on 19.08.2009, whereby the Finance (No.2) Bill, 2009 was given assent by the President of India. Before that the exemption notification No. 01/2009 was not available to the assessee, therefore, presuming to comply with the condition of Notification No. 01/2009 cannot be expected from the assessee. Therefore, the appellant have not mentioned the name and date of the consignment note in their invoice issued to their service recipient who is undisputedly GTA service provider. However to extend the benefit of such notification even though the procedural lapse can be ignored, but the fact that the service provided by the appellant to the GTA service provider which has been used in providing a GTA service needs to be established, which can be established not only on the basis of invoice alone which is not bearing the consignment note number but on any other documents details of the service recipient. Therefore, for that purpose, the matter needs to be remanded to the adjudicating authority. Demand of Rs. 4,34,241/- on cargo handing service - HELD THAT - The learned Commissioner (Appeals) appreciating the submission of the appellant remanded the matter to reconsider the said demand based upon the fact whether the service was provided prior to its levy or thereafter and the payments received therefore, the record to this fact was not available before him - there is no infirmity in the order of the Commissioner (Appeals) to the extent it relates to the demand of Rs. 4,32,241/- remanding the matter to the adjudicating authority, therefore, this portion of the Commissioner (Appeals) order is upheld. The matter needs to be remanded for reconsideration of the overall issue. The issue regarding time barring of the demand is also kept open for reconsideration by the adjudicating authority - Appeal disposed off by way of remand.

Summary

Issues:
The issues involved in the judgment are non-payment of service tax on manpower recruitment and supply agency services provided to a goods transport agency (GTA) service provider, and short payment of service tax on cargo handling services.

Manpower Recruitment and Supply Agency Services:
The appellant provided services to a GTA service provider without complying with the conditions of Notification No. 01/2009, which required mentioning specific details in the invoice. The retrospective effect of the notification was from 01.01.2005, but the appellant did not include the necessary details in their invoices from October 2007 to March 2009. The Tribunal noted that the appellant's failure to mention the consignment note details in the invoice was a procedural lapse. However, to claim the benefit of the exemption, it must be established that the services provided were indeed used by the GTA service provider in their output service. The Tribunal remanded the matter to the adjudicating authority to verify this aspect based on other relevant documents.

Cargo Handling Services:
Regarding the demand of Rs. 4,34,241 on cargo handling services, the appellant argued that this amount related to services provided before the levy of service tax, i.e., before 01.04.2011, and hence should not be taxable. The Tribunal upheld the decision of the Commissioner (Appeals) to remand this issue to the adjudicating authority for further examination, as the necessary details about the services provided and payments received were not available in the records.

Conclusion:
The Tribunal found that while the appellant had indeed failed to comply with the invoicing requirements for the exemption under Notification No. 01/2009 for the manpower recruitment services, the actual usage of the services by the GTA service provider needed to be established. The matter was remanded for further consideration. As for the cargo handling services, the Tribunal upheld the decision to remand the issue for verification of the services provided before the levy of service tax. The overall issue was remanded for reconsideration, with the question of the time-barring of the demand left open for the adjudicating authority to decide. The appeal was disposed of by way of remand to the adjudicating authority.