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TMI Blog2019 (4) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative of the Department has also made an attempt to convince us that the services rendered by the Appellant were not merely transportation of the goods, but something more and, therefore, fell within the definition of Cargo Handling Services - This activity, as is also apparent from the agreement, is clearly ancillary services provided in relation to transportation of goods. The Appellant is, therefore, correct in asserting that it is not providing Cargo Handling Service‟. Thus, it is more than apparent that the Appellant is not rendering Cargo Handling Services‟ to GVK/Gautami - Impugned order set aside - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 50002 of 2015 - FINAL ORDER NO. 50414/2019 - Dated:- 15-3-2019 - MR. JUSTICE DILIP GUPTA, PRESIDENT AND MR. BIJAY KUMAR, MEMBER (TECHNICAL) Shri B.L. Narsimhman, Advocate for the Appellant Shri Vivek Pandey, Authorized Representative for the Respondent JUSTICE DILIP GUPTA : This appeal has been filed to assail the order dated 29 August, 2014 passed by the Commissioner (Adjudication) of Service Tax, New Delhi, on the show cause notice dated 25 September, 2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x from the Appellant for rendering CHA services. If the CHA or the Appellant engages a Goods Transport Agency for inland transportation of imported goods, the Appellant would discharge Service Tax on reverse charge basis. 2. Appellant indigenously procures and supplies the equipments The Appellant would engage a GTA for transportation of goods and pay Service Tax on reverse charge basis. 3. GVK/Gautami procure equipments from their own supplier The supplier would engage GTA for transportation of goods and Service Tax thereon would be paid by GVK/Gautami as the recipient of service. The Appellant would neither be a consignee nor a consignor in this case. 6. The Department, however, felt that the Appellant had incorrectly discharged Service Tax under the category of Goods Transport Services‟ at Serial Nos. 1 and 2 in the above Chart, since it was actually rendering Cargo Handling Service‟ to GVK/Gautami. The Department felt that the Appellant had, therefore, short paid the Service Tax. The Appellant filed a detailed reply to the show cause not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of transportation of goods to customer s site. They also reliance on the Circular No. 104/7/2008-ST dated 06.08.2008 issued by the Board. In view of the above, I am not fully convinced with the views of the noticees and hence I reject the plea made on the issue accordingly. [emphasis supplied] 7. Shri B.L. Narasimhan, learned Counsel for the Appellant, has submitted : i. The Appellant is not rendering Cargo Handling Services‟ to GVK/Gautami; ii. The Appellant is not a Cargo Handing Agency‟; and iii. The Service Tax has already been paid by the Appellant and the appointed Cargo Handling Agents‟. 8. Shri Vivek Pandey, learned Authorized Representative of the Department, however, has supported the impugned order and has submitted that: i. the Appellant is, in fact, providing Cargo Handling Service‟ to GVK/Gautami and it cannot be contended by the Appellant that it is providing Goods Transport Agency Services‟; and ii. It is Roadlines Corporation Private Limited, Durgapur, which has issued the consignment note that is actually providing the Goods Transport Agency‟ to the Customs House Agent (CHA) which in turn provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport Agency‟ and that handing or safekeeping of goods is incidental to transportation to ensure safe and timely delivery to the project owners. 13. In this connection, the Appellant has placed reliance on Clause 2.1.3 of the Agreement with GSK which is as follows : 2.1.3 Co-ordination with Owner s Suppliers : Contractor shall, upon delivery thereof by Owner s Suppliers to the relevant Indian port of entry of ex-works Indian factory, as the case may be, any by Subcontractors to the Facility Site, arrange for complete handling of all materials, suppliers, tools, spare parts, equipment and construction equipment, including but not limited to expediting, unloading, receiving inspection and documents. Contractor understands and acknowledges that Owner will be procuring certain equipment, materials, suppliers, tools and other items, as well as certain engineering, design and other services, from Owner s Suppliers pursuant to the Suppliers contracts. Contractor shall co-ordinate the services with Owner s Suppliers and use its best efforts to ensure that Owner s Suppliers supply and deliver all items of equipment, materials, supplies, tools land other items and the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3.3) [2008 (9) S.T.R. C61], a composite service, even if it consists of more than one service, should be treated as a single service based on the main or principal service and accordingly classified. While taking a view, both the form and substance of the transaction are to be taken into account. The guiding principle is to identify the essential features of the transaction. The method of invoicing does not alter the single composite nature of the service and classification in such cases are based on essential character by applying the principle of classification enumerated in section 65A. Thus, if any ancillary/ intermediate service is provided in relation to transportation of goods, and the charges, if any, for such services are included in the invoice issued by the GTA, and not by any other person, such service would form part of GTA service and, therefore, the abatement of 75% would be available on it. [emphasis supplied] 16. A perusal of the same shows that composite service may include various intermediary and ancillary services such as loading/unloading, packing/unpacking etc. provided in the course of transportation of goods by road. These services are not provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Container Depot, Container Freight Stations. This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services. 19. Thus, it is more than apparent that the Appellant is not rendering Cargo Handling Services‟ to GVK/Gautami. 20. It would also be pertinent to state here that the activity of port handling of goods has suffered Service Tax in the hands of Customs House Agent appointed by the Appellant for clearance of the imported goods. The Service Tax has thereafter been recovered from the Appellant which is evident from the invoices raised by the said Agents of the Appellant. Further, in case where the Customs House Agents appoints a Goods Transport Agency‟ for inland transportation, then the Appellant pays Service Tax on reverse charge basis. This position was explained by the Appellant before the Adjudicating Authority, but the Adjudicating Authority brushed aside this aspect by merely observing that it was not fully convinced with the views. 21. The Roadline Corporation Limited may have been engaged to provide Goods Transport Agency Service‟, but the tax liability is discharged by the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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