2010 (3) TMI 454 - AT - Service Tax

Clearing and Forwarding Services- The appellants were issued a show-cause notice demanding Service Tax for the services provided to the sugar factory i.e. cutting of sugarcane, its loading into vehicle and transportation upto the sugar factory under the category of Clearing and Forwarding Services , for the period from 1997-98 to 2000-01. Further, on 9-11-2004, another show-cause notice was issued to the appellants demanding the Service Tax for delivery of sugar, its loading into vehicles and transportation, unloading/loading to train and delivery of other materials and its loading into vehicle, transportation and loading at factory. Held that- the show cause notice was not issued within the prescribed time-limit. There was no suppression of facts on the part of the appellant. The show cause notice issued on 9-11-2004 was issued for the services of delivery of sugar, its loading in vehicles and transportation, unloading/loading in train and delivery of other materials at the factory site, was not undertaken by the appellant as alleged in the show cause notice. Hence, there is no merit in the impugned order and the same is set aside. Appeal is allowed.

Summary

Issues:
Classification of services as 'Clearing and Forwarding Services' or 'Goods Transport Operator' services, imposition of service tax, penalty, and interest under relevant sections of the Finance Act, 1994.

Analysis:

1. Classification of Services:
The appellants, a cooperative society of farmers, provided services of cutting sugarcane and transporting it to a sugar factory under contract. The Commissioner classified these services as 'Clearing and Forwarding Services,' leading to demands for service tax, penalty, and interest. The appellants argued that the services could be categorized as either 'Goods Transport Operator' or 'Clearing and Forwarding Agent' but not both simultaneously. They contended that the department's changing stance from treating them as GTO to CFA was contradictory and unsustainable. The Tribunal found that the activities of cutting sugarcane and transporting it to the factory did not align with the definition of 'Clearing and Forwarding Agent.' The second show cause notice for GTO services was also deemed improper as it merged with the earlier notice, leading to a time-barred situation. The Tribunal ruled in favor of the appellants, setting aside the impugned order due to lack of merit in the classification of services.

2. Demand for Service Tax:
The appellants were issued two show cause notices for service tax, one for cutting sugarcane and transporting it to the factory and the other for delivering sugar and other materials. The demand in both notices was for the same period and amount. The Tribunal found the demand under the 'Clearing and Forwarding Agent' category unsustainable due to the nature of services provided. Additionally, the merging of the two show cause notices was deemed impermissible under the law. The second notice for GTO services was considered time-barred as it was issued beyond the prescribed time limit, with no suppression of facts by the appellants. The Tribunal concluded that the demand for service tax was not justified and ruled in favor of the appellants.

3. Penalty and Interest:
The Commissioner had imposed penalties under Sections 76 and 77, along with levying interest under Section 75 of the Finance Act, 1994. However, the Tribunal set aside the impugned order due to the lack of merit in the demand for service tax itself. As a result, the penalties and interest imposed were also deemed unwarranted and were not upheld.

In conclusion, the Appellate Tribunal CESTAT, Mumbai, allowed the appeal, setting aside the impugned order due to the unsustainable classification of services, improper merging of show cause notices, and the time-barred nature of the demand for service tax. The penalties and interest imposed were also overturned based on the lack of merit in the demand for service tax.