9911796707
TMI Blog2018 (11) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... ce No. V(ST) Adj.II/JPR-II/224/09 dated 09 April, 2009 have been issued to the appellants whereunder a service tax amount of Rs. 74,92,495/- have been demanded for the period covering April, 2006 to March, 2008 under section 73 of the Finance Act, 1994 by invoking the extended time proviso under the relevant section. A penal provisions of section 76, 77 and 78 have also been invoked. The matter have been adjudicated vide Order-in-Original dated 27 February, 2015 whereunder the charges as invoked in the above Show Cause Notice has been confirmed against the appellant and as a result, they are before us against the above mentioned impugned Order-in-Original. 2. Before considering the rival convention, it will be appropriate to first examine the relevant contract under which the composite services of transportation of the Cargo has been made by the appellant. 3. The appellant have entered into an agreement on 18 January, 2007 with M/s. Rajasthan State Metals and Minerals Ltd. for undertaking the work of loading of limestone gitti of various sizes into tipper / dumpers from the mining site at Sanu Limestone Mines in District Jaisalmer and transportation of same from the mining area t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art i.e. A, B, C and D of clause 1-1.30 may attract different rate of service tax and also it may be responsibility of RSMML / Society to pay tax. Accordingly, if deposition of service tax becomes the liability of the company then it will be deposited without making deductions from the bill and if the contractor is liable to deposit service tax then the same shall be reimbursed to the contractor on submission of proof of such deposition." It was submitted that their agreement with RSMML for the work of transportation, loading, unloading and watch & ward was a composite contract and their understanding was that work of loading, unloading and watch and ward were included in main activity of transportation for which service tax had been paid by RSMML. Accordingly, they had not billed to and received from RSMML any payment towards service tax on these activities. However, in case, tax is applicable on the activities performed by them, they would charge the same from RSMML and deposit the same with Govt. as in their contract with RSMML very clearly stated that service tax if applicable have to be reimbursed by RSMML. Whereas, as per the detailed letter of intent No. RSML/CO/GGM( C) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and security service. 5. We have heard the learned DR who has supported the impugned order-in-original. 6. We have considered the submissions advanced by the both sides. 7. In order to appreciate the contentions, it is considered appropriate to refer to the relevant provisions of Section 65(23) of the Act that defines 'Cargo Handling Service' and it is as follows : "65(23) - "cargo handling service" means loading, unloading, packing or unpacking of cargo and includes: (a) cargo handling services provided for freight in special containers or for non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and cargo handling service incidental to freight; and (b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods". 8. On the other hand, Section 65(50b) of the Act defines "Goods Transport Agency" to mean any person who provides service in relation to transport of goods by road and issues consignment not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny reason, a taxable service is prima facie, classifiable under two or more sub-clauses of clause (105) of Section 65, classification shall be effected under the sub-clause which provides the most specific description as against a sub-clause providing a more general description. It also provides that, in the case of composite services consisting of a combination of different services, it shall be classified as if they consisted of a service which gives them their essential character, in so far as this criterion is applicable. 12. What we find from the record and what has also been noticed by the Commissioner is that the cost of transportation is Rs. 121.35 per ton and the distance is 119 km. The work of loading and unloading watch and ward of cargo is incidental to "transportation', which has also been clarified by Circular dated 6 August, 2008 issued by Government of India, Ministry of Finance, Department of Revenue in regard to Service tax levy on goods transport by road services. It would be pertinent to refer to paragraph 3, which is reproduced below: "3. Issue : GTA provides service to a person in relation to transportation of goods by road in a goods carriage. The service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r person, such service would form part of GTA service and, therefore, the abatement of 75% would be available on it." (emphasis supplied) 13. 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 provided as independent activity but as means of successful implementation of the principal service, namely the transportation of goods by road. It has, therefore, been clarified that 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. It has, therefore, been held that any ancillary / intermediate service provided in relation to transportation of goods, and the charges, if any, for such services are included in the invoice issued by the Goods and Transport Agency and not by any other person. Such service would form part of Goods and Transport Agency Service and , therefore, the abatement of 75% would be available on it. It has, therefore, to be seen whether in the present case transportation is the main service an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
