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TMI Blog2018 (11) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... freight forwarders as noted therein and for the reasons given, the tax incidence for each of them would be different. By the impugned circular, an authority is required, after considering the individual case on merits, to identify the category in which the freight forwarder falls and then calculate the tax incidence accordingly - The impugned circular cannot be read to have imposed any restrictions or any authority or to be contrary to the provisions of any statute or to have whittled down any provision of any Rule or being contrary to any Rule or to determine any show-cause notice in any particular way. The impugned circular requires the authorities to look into the accounts of a freight forwarder in the light of the two nature of businesses noted therein and arrive at the tax incidence - the impugned circular dated August 12, 2016 cannot be held to be bad in law - issue is answered in the negative and against the petitioner. To what relief or reliefs are the parties entitled to? - Held that:- In view of the first two issues being answered against the petitioner, no relief can be granted to the petitioner. Petition dismissed - decided against petitioner. - W.P. No. 27404 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 2008 Volume 226 E.L.T. page 16 (S.C.) (Union of India Ors. v. Inter Continental (India)), 1993 Volume 12 E.L.T. page 349 (Del.) (Indian Aluminum Company Limited Anr. v. Union of India Ors.) and 2016 Volume 43 S.T.R. page 482 (Sourav Ganguly v. Union of India Ors.) in support of such contention. He submits, assuming that the circular is correct, then, such a circular being against the assessee, is required to be applied prospectively. In support of such contention, he relies upon 2007 (208) E.L.T. page 321 (S.C.) (Suchitra Components Ltd. v. Commissioner of Central Excise, Guntur). He submits that, the circular is binding upon the authorities. By virtue of its binding nature, it forecloses the judgment of a quasi judicial power. The same is not permissible. In support of such contention, he relies upon 2015 (39) S.T.R. page 705 (S.C.) (Union of India Ors. v. M/s. Karvy Stock Broking Ltd.). 4. Referring to the facts of the present case, learned Advocate for the petitioner submits that, Rule 10 and Rule 14 applies. Since both the rules relate to place a provision of service rules, then, Rule 10 should apply. 5. Learned Additional Solicitor General appearing for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities cannot issue show-cause notices for the same period. The other limb is that, jurisdictional fact required for invoking the extending period of limitation is absent. The two impugned show- cause notices are for the period 2012-2013 to 2014-2015. They are issued by two different authorities acting under the Sales Tax Laws. The impugned notices are, therefore, not in respect of the overlapping period for the first show-cause notice suffered by the petitioner dated April 17, 2013. Simplex Infrastructures Ltd. (supra) concerns a case where, two show-cause notices were issued for the same period covering September 10, 2004 to June 15, 2005. The first show-cause notice had resulted in an order of assessment. Thereafter, the second show-cause notice was issued for a period which overlapped with the period covered by the order in original passed in respect of the first show-cause notice. In such circumstances, it held that, there cannot be double assessment for the period overlapping to an appreciable extent. Avery India Ltd. (supra) is of the view that, there cannot be two assessments for the same period. The second show-cause notice was quashed as the first show-cause has result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, the revenue cannot invoke the extended period of limitation, where facts leading to the show-cause notices were already known to the revenue. As noted above, the petitioner cannot contend that, having disclosed materials in the earlier show-cause notice for a different period, the revenue is aware of the requisites for the period for which the impugned show-cause notices have been issued. 10. The show-cause notice dated May 7, 2017 has been issued by the Principal Commissioner. It alleges that, the petitioner had provided services falling under the categories of Cargo Handling Service, Business Auxiliary Service and Business Support Service. It alleges that, the petitioner is not guilty of including its income under the head Ocean Freight/Railway Freight in the gross value of taxable service and suppressed actual income as Business Auxiliary Service and Business Support service in the submitted periodical returns and not paid Service Tax in full. The other show-cause notice is dated October 20, 2017 and has been issued by the Goods and Services Tax Intelligence wing. It deals with the statement of the sole proprietor of the petitioner recorded in the proceeding. The releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or courier, shall be the place of destination of the goods. The proviso thereto clarifies that, the place of provision of services of goods transportation agency shall be the location of the person liable to pay tax. Rule 14 of the Rules of 2012 states that, where the provision of a service is prima facie, determinable in terms of more than one Rule, it shall be determined in accordance with the Rule that occurs later among the Rules that merit equal consideration. The impugned circular dated August 12, 2016 deals with Service Tax on freight forwarders on transportation of goods from India. The circular was issued pursuant to CBEC receiving representations regarding Service Tax on freight forwarders on transportation of goods from India. It notices Rules 2(f), 9 and 10 of the Rules of 2012. It notices that, in a given situation, a freight forwarder, may deal with the exporters as an agent, without any responsibility for the actual transportation, and as a principal who is providing the service of transportation. It provides that, where a freight forwarder, when acting as a principal, will not be liable to pay Service Tax, when the destination of the goods is from a place in India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Ltd. (supra) finds, in the facts of such case that, the circular dated November 5, 2003 to have foreclosed the discretion or judgment that may be exercised by the quasi judicial authority while deciding a particular lis under particular circumstances. In the present case, quite to the contrary of the facts of M/s. Karvy Stock Broking Ltd. (supra), the impugned circular, requires the authorities to adjudicate the lis on the basis of the facts of each case, the terms of the contract between the entities concerned and the provisions of law governing the transactions. 15. In such circumstances, the impugned circular dated August 12, 2016 cannot be held to be bad in law. The second issue is answered in the negative and against the petitioner. 16. In view of the first two issues being answered against the petitioner, no relief can be granted to the petitioner. The third issue is answered accordingly. 17. W.P. No. 27404 (W) of 2017 is dismissed. All interim orders stand vacated. 18. Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities. - - TaxTMI - TMITax - Service Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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