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2023 (12) TMI 1068 - AT - Service TaxNon-payment of Service Tax - Cargo Handling Services - evacuation of Ash and Nuisance Free Disposal at the abandoned mines of CCL/BBCL - Mining Services - transportation of Coal - Supply of Tangible Goods Service - GTA Service - services availed for hire of trucks from various persons for transportation of coal - Violation of CCR '04 by not paying 6% on the value of exempted services. Demand of Service Tax under Cargo Handling Service - HELD THAT - It is observed that the Appellant has rendered the service to Tenughat Vidyut Nigham Limited, Damodar valley Corporation and Mejia Thermal Power Corporation, for evacuation of ash from different Ash Ponds located at the power stations. The ash was transported to the abandoned mines of CCL, ECL, BCCL for the disposal of ash - the ash was transported in automatic dippers/dumpers/trucks and unloaded the same into the abandoned mines, by automatically sliding down the ash in the core of such mines - A perusal of the work order reveal that the primary service in this case is transportation and the loading and unloading work is ancillary to the transportation service - the Appellant has rendered transportation service. In terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the recipients are liable to pay service tax for the GTA services received by them - the demand of service tax from the Appellant under the category of 'Cargo Handling Service' is not sustainable. Demand of Service Tax under the category of 'Mining Services' - HELD THAT - The services rendered by the Appellant was transportation of coal. They have not received any contract for actual mining of coal - A perusal of the work order received by them would reveal that it is a composite contract involving transportation as the primary service. All other services are incidental or ancillary to transportation service - the adjudicating authority has not brought in any evidence to substantiate the allegation that the appellant has rendered 'Mining Service' - the service rendered by the Appellant is transportation service. As the receiver has already paid service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, the demand confirmed in the impugned order under 'Mining Service' against the Appellant is not sustainable. Demand of Service Tax on the transportation services rendered by other transporters as sub-contractors - HELD THAT - The transporters have not issued any 'Consignment Notes'. In respect of this transportation service, the Appellant has raised invoice for the full value to their clients CCL/BCCL and the receiver has paid service tax on the full value of the contract. As the sub-contractors who provided the transportation service has not issued any 'consignment note', it is observed that the Appellant are not liable to pay service tax under the category of GTA service on reverse charge - Since the sub-contractor who rendered the transportation service to the Appellant has not issued any 'consignment note' for the transportation service, it is held that the Appellant is not liable to pay service tax as recipient of GTA Service. As the Appellant has raised the invoice on the full value and the recipient has paid service tax under GTA on the full value, demanding Service Tax again from the sub-contractor for the transportation service would amount to 'double-taxation' - the demand of service tax from the Appellant on reverse charge basis under GTA service is not sustainable. Extended period of limitation - penalty - HELD THAT - It is observed that the issue involved in the Work Orders covered by earlier Notices were also related to the issue whether Evacuation of Ash from the ponds and transporting it out side ti fill the abandoned mines. Earlier Notice demanded service tax under the category of ,Cleaning Service, for the same work. Thus, it is evident that even though the Work Orders are different, the issue involved is the same - the department has not brought in any evidence to substantiate the allegation of suppression in this case, to invoke extended period - the adjudicating authority has rightly dropped the demands on the ground of limitation and not imposed penaltied under Section 78 of the Finance Act, 1994 and Rule 15 of the CCR 04 - the department s appeal is not sustainable and it is liable for rejection. The impugned order set aside - appeal allowed.
Issues Involved:
1. Non-payment of Service Tax on evacuation of Ash and Nuisance Free Disposal under 'Cargo Handling Services'. 2. Non-payment of Service Tax on transportation of Coal under 'Mining Services'. 3. Non-payment of Service Tax under 'Supply of Tangible Goods Service'. 4. Non-payment of Service Tax on services availed for hire of trucks under 'GTA Service'. 5. Violation of CCR '04 by not paying 6% on the value of exempted services. Summary: Issue 1: Non-payment of Service Tax on evacuation of Ash under 'Cargo Handling Services' The Appellant argued that the services rendered were transportation services, not 'Cargo Handling Services'. They cited previous decisions (Purba Medinipur Jilla Parishad vs. CCE, Haldia, Calcutta Industrial Supply Corpn. vs. Commissioner of S.T., Kolkata, and M/S Arun Udyog vs. Commissioner of Central Excise, Customs & Service Tax, Bhubneshwar-I) to support their claim. The Tribunal agreed, noting that the primary service was transportation, with loading and unloading being ancillary. Thus, the demand of service tax under 'Cargo Handling Service' was not sustainable. Issue 2: Non-payment of Service Tax on transportation of Coal under 'Mining Services' The Appellant contended that their services were transportation of coal, not mining, and cited the Supreme Court decision in Commissioner of Central Excise & Service Tax vs. Singh Transporters. The Tribunal found that the work orders confirmed the primary service as transportation, with other services being incidental. Consequently, the demand under 'Mining Service' was not sustainable. Issue 3: Non-payment of Service Tax under 'Supply of Tangible Goods Service' The adjudicating authority dropped the demand on the ground of limitation, which was upheld by the Tribunal. The department's appeal on this ground was rejected. Issue 4: Non-payment of Service Tax on services availed for hire of trucks under 'GTA Service' The Appellant argued that no 'Consignment Notes' were issued by sub-contractors and that service tax had already been paid by the recipients. The Tribunal agreed, noting that demanding service tax again would amount to 'double-taxation'. The decision in Lakshmi Narayan Transport Vs Commissioner of CGST and Central Excise was cited to support this conclusion. Issue 5: Violation of CCR '04 by not paying 6% on the value of exempted services The adjudicating authority dropped the demand, finding that separate accounts were maintained for exempted and taxable services. This decision was upheld by the Tribunal. Department's Appeal: The Tribunal found no merit in the department's appeal, noting that the issues in the work orders were the same as previous ones and were already adjudicated. The demand was rightly dropped on the ground of limitation, and no penalties were imposed. Conclusion: The Tribunal set aside the impugned order, allowed the appeal filed by the Appellant, and rejected the appeal filed by the department.
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