2013 (5) TMI 110 - AT - Service Tax

Service of transport of goods by road - Assesses are in the business of transportation of coal in tipping trucks from coal stockyard of Northern Coal Fields Ltd. (NCL) including loading of coal into tipping trucks and railway wagons by employing their own pay loaders apart from manual breaking of coal to the stipulated sizes - service tax demand and levy of interest and penalties - Held that - Services provided by the appellants herein to Northern Coal Fields Ltd. under distinct work orders constitute cargo handling services as defined in Section 65(105)(zzr) and do not constitute transport of goods by road service, as defined in Section 65(105)(zzp) read with Section 65(50b). Since the impugned adjudication orders have failed to consider whether the proceedings against several appellants here are barred by limitation and no extended period of limitation could be invoked in lieu of the transactions having been noticed by the Revenue qua notices issued to NCL and failed to analyse and consider the material on record i.e. that service tax was already assessed/recovered from NCL treating the service/transaction as transport of goods by road, impugned adjudication orders are quashed and the matters remitted to the adjudication authority, to consider and determine whether the extended period of limitation could be invoked in the circumstances and whether service tax liability could again be assessed and levied on the ground that the service provided by the appellants are cargo handling services when the same service and the value thereof was assessed as transport of goods by road and service tax thereon collected from NCL, as the service recipient.

Summary

Issues:
1. Classification of services provided by the appellants as transport of goods by road or cargo handling services.
2. Bar of limitation in proceedings against the appellants.
3. Double taxation issue arising from service tax already levied on NCL for the same transaction.

Issue 1: Classification of services provided by the appellants

The appellants contested the adjudication orders assessing them to service tax and penalties, arguing that the services provided should be classified as transport of goods by road rather than cargo handling services. The Board Circular dated 6.8.2008 was cited in support of this argument. However, the Orissa High Court's decision in Coal Carriers Vs. CCE- 2011 (24) STR 395 (Ori.) settled the issue, stating that goods become cargo when loaded into a railway wagon/truck/tipper, distinguishing between transport of goods by road and cargo handling services. The court ruled that the services provided by the appellants indeed constituted cargo handling services, not transport of goods by road, leading to the conclusion that the adjudication authority's classification was accurate and required no interference.

Issue 2: Bar of limitation in proceedings

The appellants contended that the proceedings initiated against them were barred by limitation under Section 73(1) of the Act. They argued that since NCL had been issued a Show Cause Notice and an adjudication order was passed against NCL before the notices issued to the appellants, invoking the extended period of limitation against them was unwarranted. The adjudication orders against the appellants failed to analyze the limitation aspect, leading to a lack of coherence in addressing this contention.

Issue 3: Double taxation issue

The appellants raised concerns about double taxation, emphasizing that NCL had already been assessed and levied service tax under the transport of goods by road category for the same transaction. They argued that charging service tax again under cargo handling services for the same service and value was unjust. The adjudication orders did not adequately address this issue, failing to consider whether reclassifying the transaction as cargo handling service for additional tax collection was permissible after service tax had been collected from NCL under a different category.

In conclusion, the Appellate Tribunal CESTAT NEW DELHI, in a judgment delivered by Mr. G. Raghuram, ruled in favor of the appellants. The services provided were classified as cargo handling services, the limitation aspect was not adequately addressed in the adjudication orders, and the potential issue of double taxation was highlighted. The matters were remitted to the adjudication authority for further consideration, emphasizing the need to assess whether the extended period of limitation could be invoked and if service tax liability could be re-evaluated given the previous tax collection from NCL. The appeals were allowed, and no costs were awarded in the circumstances.