2019 (5) TMI 470 - AT - Service Tax

Demand of service tax - Good Transport Agency Service - time limitation - HELD THAT - The order in appeal on the same issue for earlier period was subject matter of appeal before CESTAT. CESTAT Mumbai Bench in BHIMA S.S.K. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE PUNE III 2018 (5) TMI 220 - CESTAT MUMBAI has allowed the appeal filed by the Appellant - Since the appeal filed by the Appellant against the earlier order of Commissioner (Appeal) on the same issue has been allowed we do not find any merits in the impugned order of Commissioner (Appeals). Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Confirmation of demand under Section 73(1) of the Finance Act, 1994
2. Demand of interest under Section 75 of the Finance Act, 1994
3. Imposition of penalties under Sections 77 and 76 of the Finance Act, 1994
4. Classification of services under Goods Transport Agency Service
5. Applicability of reverse charge mechanism for service tax

Analysis:

1. The Assistant Commissioner confirmed a demand of &8377; 1,93,864 under Section 73(1) of the Finance Act, 1994, along with interest under Section 75 and penalties under Sections 77 and 76 for failure to file returns and pay service tax. The appellants, manufacturers of excisable goods, were registered for Goods Transport Agency Service under reverse charge basis.

2. The appellants availed transportation services but failed to pay service tax on outward freight, leading to the demand against them. Periodical Show Cause Notices were issued, resulting in the demand for service tax from 2010-11 to January 2012. The Assistant Commissioner adjudicated the Show Cause Notice, which was upheld by the Commissioner (Appeals), prompting the appeal.

3. The Tribunal noted that a previous order by CESTAT Mumbai Bench allowed an appeal against a similar issue, where the services provided by transporters were deemed to fall under 'Clearing and Forwarding Agent Service' rather than Goods Transport Agency Service. The Tribunal, following the previous order, allowed the current appeal, setting aside the Commissioner (Appeals) order.

4. The Tribunal found that the services provided by the transporters to the appellants did not align with the definition of Goods Transport Agency Service, as the transporters were involved in loading, unloading, and transportation without issuing consignment notes. The Tribunal concluded that the services should be classified as 'Clearing and Forwarding Agent Service' based on the activities performed.

5. Given the previous successful appeal on a similar issue, the Tribunal ruled in favor of the appellants, setting aside the Commissioner (Appeals) order. The judgment was pronounced on 12.04.2019 by the Tribunal, comprising Mr. S.K. Mohanty, Member (Judicial), and Mr. Sanjiv Srivastava, Member (Technical).