2024 (11) TMI 1285 - AT - Service Tax

Taxability of service tax on transporting goods by road itself - appellant has employed GTAs for the purpose, but in those cases the appellant has discharged the service tax liability under Reverse Charge Mechanism (RCM) and has taken credit of such service tax paid in their Cenvat account at appropriate percentage in terms of Rule 6 (3) of Cenvat Credit Rules, 2004 - HELD THAT - Since admittedly the appellant is neither the GTA, nor the Courier agency hence, the activity of transportation of goods by road by them is well covered under the aforesaid provision. The amount in question is an amount towards facilitation of freight and insurance by the appellants themselves. The said perusal of section 66D (p) in itself is sufficient to hold that the service tax on the said amount has wrongly been demanded. The order to that extent is therefore liable to be set aside. Demand of reversal of Cenvat credit on the services of hiring of water tankers, mechanized canteen cleaning, catering services - Section 44 of the Act requires every factory owner to make suitable arrangements for sitting of all workers obliged to work in standing position and even for all other workers engaged in a particular manufacturing process or working in a particular room. Section 46 of Factory Act requires the existence of canteen in the factory and the cleanliness thereof. In the light of the above discussed statutory mandate the services of hiring of water tankers having mechanized canteen cleaning and that of catering services, to our opinion are the eligible input services. Hence we hold that the Cenvat credit has wrongly been denied to the appellant. In the present case the services like hotel accommodation etc. were for the personnel called for imparting training to the employees of the appellants. Hence it is clear that services were not meant for personal use of the employee. We hold that the credit of these services has been rightly availed. Meaning of terms Includes , in relation to and such as referred in view of the following Decisions in Bakelite Hylam 1998 (7) TMI 92 - SUPREME COURT , Azad Coach Builders 2006 (2) TMI 171 - SUPREME COURT and CCE v. JK Cement Works 2009 (1) TMI 146 - CESTAT NEW DELHI , TTK Pharma Ltd v. CCE 1992 (8) TMI 183 - CEGAT, NEW DELHI respectively. Credit on short term accommodation/hotel services was with respect to the visits in factory for inspection and witnesses of the test on the goods ordered by the customers for giving certificate of acceptance. Hence, the expenditure was directly related to the manufacture of goods and rendering of services by the appellant. Resultantly, the denial of availment of Cenvat Credit is not sustainable. The order to this extent is also liable to be set aside. In the light of entire above discussion the Order in Original/ Order under challenge is set aside. Consequent thereto the appeal is hereby allowed.

Summary

Issues:
1. Whether the appellant is liable to pay service tax on the amount received for facilitating freight and insurance under the Goods Transport Agency (GTA) services.
2. Whether the appellant is entitled to avail Cenvat Credit on input services for hiring of water tankers, mechanized canteen cleaning, catering services, and short term accommodation hotel services.

Analysis:
1. The appellant, engaged in transportation services, received income for freight and insurance. The department alleged a service tax liability on the appellant, which the appellant contested. The appellant argued that their activity falls under the negative list of non-taxable services and that they are not a Goods Transport Agency (GTA). The Tribunal observed that the appellant had discharged service tax under Reverse Charge Mechanism for services provided by GTAs. The Tribunal held that the appellant's transportation activity is non-taxable as per Section 66D of the Finance Act. Therefore, the demand for service tax was set aside.

2. Regarding the denial of Cenvat Credit, the appellant contended that the services in question were received in compliance with the Factories Act. The appellant highlighted similar cases where demands were dropped for other units. The Tribunal noted the statutory requirements under the Factories Act for cleanliness, drinking water facilities, canteens, etc. The Tribunal held that services like hiring water tankers, canteen cleaning, and catering services qualify as eligible input services under Cenvat Credit Rules. The denial of Cenvat Credit amounting to Rs.9,17,113/- was deemed incorrect and set aside.

In conclusion, the Tribunal allowed the appeal, setting aside the Order-in-Original and confirming that the appellant was not liable to pay service tax on the freight and insurance income. Additionally, the Tribunal held that the appellant was entitled to avail Cenvat Credit on the input services mentioned. The judgment was pronounced on 27/11/2024.