2014 (12) TMI 244 - AT - Service Tax

Cargo handling charges - Appellant render composite service and charge a lump sum amount - Held that - Appellant collected transportation charges and cargo handling charges separately and discharged Service Tax liability on cargo handling charges. This amounts to tax planning and not tax evasion as alleged by the Revenue. Further, the activity of the appellant was made known to the department as early as in March, 2003 and nothing prevented the department in issuing a show cause notice as soon as they came to know of the activity of the appellant. However, the department waited till 3-8-2005 to issue a show cause notice for the period from 2002 to 31-3-2005. It is thus seen that bulk of the demand pertains to the period beyond the normal period of limitation. We have perused the show cause notice issued to the appellant. Apart from making a bland statement that the appellant has suppressed the facts from the department, no evidence has been led by the Revenue to show that the appellant in fact suppressed the facts with an intention to evade tax. The appellant being a Public Sector Undertaking of Government of India, it would not be correct to infer any evasion of duty or intention to do so as held by the Hon ble High Court of Punjab & Haryana in the case of Markfed Refined Oil & Allied Industries cited 2009 (7) TMI 1204 - PUNJAB AND HARYANA HIGH COURT - Decided in favour of assessee..

Summary

Issues Involved:
- Applicability of Service Tax on composite services
- Tax liability on lump sum charges
- Interpretation of Board Circular on cargo handling services
- Demand of Service Tax invoking extended period
- Allegations of tax evasion and suppression of facts
- Tax planning vs. tax evasion

Applicability of Service Tax on Composite Services:
The appellant, a Government of India undertaking, was registered for taxable services of storage, warehousing, and cargo handling. The issue arose when the department demanded Service Tax on the entire amount collected from customers, contending that as the appellant rendered a composite service and charged a lump sum, tax should be paid on the full amount. The appellant argued that Service Tax should only apply to cargo handling charges if transportation charges were shown separately in the bills, as per a Board Circular. The Tribunal noted that the appellant had indeed shown charges separately and paid tax accordingly, considering excess transportation charges separately. The Tribunal concluded that the appellant's approach constituted tax planning, not evasion, and upheld the appellant's method of tax calculation.

Tax Liability on Lump Sum Charges:
The appellant had initially collected lump sum charges for composite services but later separated charges for cargo handling and transportation. The Revenue argued that the appellant's splitting of charges was a deliberate attempt to avoid Service Tax liability. The appellant defended their actions, stating that they had paid tax on excess transportation charges and had disclosed their activities to the department early on. The Tribunal found that the appellant's actions were in line with tax planning and did not constitute evasion, especially considering the lack of evidence of deliberate suppression of facts.

Interpretation of Board Circular on Cargo Handling Services:
The appellant relied on a Board Circular regarding cargo handling services, arguing that if transportation charges were shown separately, tax should only apply to cargo handling charges. The Tribunal agreed with this interpretation, noting that the appellant had followed the circular by separately showing charges and paying tax accordingly, even on excess transportation charges.

Demand of Service Tax Invoking Extended Period:
The department issued a show cause notice demanding Service Tax for a period invoking the extended time limit. The Tribunal observed that the majority of the demand fell outside the normal limitation period, and the department had not provided sufficient evidence of deliberate suppression of facts by the appellant. Considering the appellant's status as a Government undertaking and the lack of evidence of evasion, the Tribunal found the demand unsustainable and set it aside.

Allegations of Tax Evasion and Suppression of Facts:
The Revenue alleged that the appellant's actions were aimed at evading Service Tax by splitting charges and collecting more than the actual transportation costs. However, the Tribunal found no evidence of deliberate evasion, noting that the appellant had disclosed their activities to the department early on and had paid tax on excess transportation charges, indicating a case of tax planning rather than evasion.

Tax Planning vs. Tax Evasion:
The Tribunal distinguished between tax planning and tax evasion, noting that the appellant's approach of separately showing charges and paying tax accordingly constituted tax planning. The Tribunal emphasized that the appellant's status as a Government undertaking further supported the conclusion that there was no intention of tax evasion. As a result, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.