2023 (8) TMI 903 - AT - Service Tax

Classification of service - loading and unloading charges - Levy of Service Tax - house rent charges reimbursed by client - incorrect working of service tax - penalties. HELD THAT - The major demand was admittedly paid by the appellant only a small amount was disputed in the present appeal. Classification of service - loading and unloading charges - classifiable under Manpower Supply Service or under cargo handling service? - HELD THAT - As per the contract dated 30.07.2010 irrespective that the fact whether the labour provided by the appellant have carried out the loading and unloading or any other work but when as per contract the appellant were supposed to provide the manpower service, the activity clearly qualified as Manpower Recruitment and Supply Agency Service and therefore on this count the demand is clearly sustainable. Levy of service tax - house rent charges reimbursed by client - HELD THAT - The recipient have arranged such accommodation on behalf of the company and on receiving the sum as reimbursement, As per contract dated 30.07.2010 the appellant were to pay salary/ food/ accommodation to the worker engaged in the work. As per these terms, the appellant themselves have to incur the expenditure for all these items including accommodation of the workers and on the turn key working the appellant is supposed to receive the service charges. Therefore, it cannot be said that the appellant have incurred the expenses on behalf of the service recipient as buyer/agent. Accordingly, the amount of house rent charges cannot be termed as reimbursement of expenses over and above the service charges. Therefore, the demand on this count is also sustainable. Incorrect working of service tax - HELD THAT - The appellant have referred the letter dated 07.06.2011, though the appellant have given the reconciliation in the said letter. However, both the lower authorities have rejected the same on the ground that no documents were produced in support of their claim of incorrect calculation of service tax liability. In appeal also the appellant have not submitted any documents therefore, demand of service tax of amount of Rs. 73,053/- is also sustainable. Penalty imposed under Section 76, 77 and 78 - HELD THAT - The appellant have recorded the entire transaction in the books of account. They have worked under the contract, they have admittedly paid the major amount of Rs. 36, 00,875/- along with interest of Rs. 4,23,451/- and the remaining amount involved is on debatable issue, therefore, malafide intention cannot be attributed to the appellant. In these circumstances by invoking Section 80, the penalties under section 76, 77 and 78 are not imposable. It is also found that the appellant have been imposed penalty under section 76 and 78 simultaneously. It is settled legal position by the Hon ble Gujarat High Court in the case of M/S RAVAL TRADING COMPANY VERSUS COMMISSIONER OF SERVICE TAX 2016 (2) TMI 172 - GUJARAT HIGH COURT that the penalty under Section 76 and 78 cannot be imposed simultaneously. Accordingly, the penalty under section 78 is not imposable also on this principle. The appeal is partly allowed.

Summary

Issues involved:
The judgment involves the following Issues:
I. Service tax demand on loading and unloading charges.
II. Service tax demand on house rent charges reimbursed by the client.
III. Service tax demand due to incorrect working of service tax.

Issue I - Service tax on loading and unloading charges:
The appellant challenged a service tax demand of Rs. 1,14,509 on loading and unloading charges, arguing that they provided ancillary services exempted under cargo handling service. The Commissioner (Appeals) erred in levying tax under Manpower Supply Service instead of cargo handling service. The tribunal found that the appellant was supposed to provide manpower service according to the contract, qualifying as Manpower Recruitment and Supply Agency Service, making the demand sustainable.

Issue II - Service tax on house rent charges:
Regarding a service tax demand of Rs. 51,126 on house rent charges reimbursed by the client, the appellant contended that the charges were for providing residence to workers at a remote site, the responsibility of the contractee. The tribunal determined that the appellant was to pay for accommodation, food, and salary for workers as per the contract terms, making the demand sustainable.

Issue III - Service tax due to incorrect calculation:
The appellant disputed a service tax demand of Rs. 73,053, claiming it was in excess due to a calculation error. Despite providing a reconciliation letter, the lower authorities rejected the claim due to lack of supporting documents. As the appellant failed to submit any documents during the appeal, the tribunal found the demand sustainable.

Penalties Imposed:
The tribunal noted that the appellant had paid the major amount and interest, with the remaining amount being a debatable issue. Considering this, penalties under sections 76, 77, and 78 were deemed not imposable under Section 80 of the Finance Act, 1994. Additionally, the tribunal observed that penalties under sections 76 and 78 cannot be imposed simultaneously based on a legal precedent, leading to the penalty under section 78 being deemed not imposable.

Conclusion:
After considering the submissions and evidence, the tribunal modified the impugned order. The appeal was partly allowed in favor of the appellant. The judgment was pronounced in open court on 18.08.2023.