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TMI Blog2022 (5) TMI 1042X X X X Extracts X X X X X X X X Extracts X X X X ..... s regarding arrival of Rakes at the railway siding situated at Kota RH and also collect information regarding arrival of rakes from the Railway Office. The appellant is also required to track the consignment from the railway online system - The appellant is also required to co-ordinate with secondary transporter engaged by the company to load the cement against orders of customers as per the instructions of company officer. In case, any truck of customer is placed, than the same will also be loaded as per the company's instructions. Admittedly, under this agreement the appellant have deposited the service tax on the full value of consideration and there is no dispute in this regard. The scope of work as provided in the para-2 of the agreement (RUD 2), provides that the appellant shall place trucks for transportation of consignment of the company from railway platform/shed/godown to the various destinations including those of dealers/stockist/individual customers as per the company s instructions on regular basis. The transport work shall be mainly carried out to different places in Rajasthan from Mata ka Than godown under Jodhpur depot. The list of specified destinations is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansactions during the relevant period and reflected the same in ST-3 returns]; and b) Transportation of goods by road( (i) with issuance of consignment notes for Ultratech, on which Service Tax is paid by Ultratech under reverse charge mechanism under transportation of goods by road service (for short GTA service ), and (ii) without issuance of consignment notes from other GTAs, on which no Service Tax is payable). 4. These services are provided by the Appellant under different agreements with Ultratech and other service recipients. The classification of such independent services provided under different agreements is determined accordingly by the Appellant in the aforesaid manner. 5. During audit of records of the Appellant, it was pointed out that the Appellant has entered into composite agreement with Ultratech for transportation of cement from specified railway locations/ godowns to specified destinations, but was splitting its invoices into i) that for handling charges and ii) that for transportation charge, and paying Service Tax on handling charges only. That the activities of the Appellant qualify as cargo handling services and not as GTA services. 6. This wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder each agreement separately and its consequent classification. 10.4 The demand has been confirmed in the Impugned Order by the Adjudicating Authority on the ground that a comprehensive service agreement having multifarious limbs has deliberately been divided into various contracts, with intent to avoid true and correct Service Tax on the entire consideration, against the composite single service and that the activities of the Appellant are classifiable as C F agency services 10.5 It is submitted that this basis for confirmation of demand in the Impugned Order is clearly beyond the scope of SCN, in as much as the SCN was issued on the presumption that the Appellant split the consideration into handling charges and transportation charges at the time of raising invoices only. There was no allegation in the SCN that a comprehensive service agreement was divided into various contracts. In fact, the SCN referred to various different agreements of the Appellant in Para 3 and 4 thereof, though selectively. 10.6 It is a settled law, SCN is the foundation of any proceedings and its adjudication and all subsequent proceedings are to be limited to the allegations made in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... STATDEL, wherein the question was regarding classification of separate activities carried out under the same contract. Even though the said activities were carried out under the same contract. The Tribunal upheld separate classification of such activities, considering the different scope and nature thereof. This decision has been affirmed by Hon ble Supreme Court at 2015 (39) STR J370 (SC). The present case of the Appellant is on a better footing, where activities are carried out under independent agreements. 11.5 Reliance is also placed on the following decisions: Centre for Development of Advance Computing v. CCE, Pune, 2015- TIOL-1642-CESTAT-MUM HN Coal Transport Private Limited v. CCE ST, Raipur, 2018 (8) TMI 173 CESTAT NEW DELHI Mosaic India Private Limited v. CCE ST, Rajkot, 2014-TIOL-2513- CESTAT-AHM CCE, Kolhapur v. Sunil Arora, 2018 (4) TMI 538 CESTAT Mumbai Synergy Baxi Logistics Pvt. Ltd. v. CCE, Jaipur-I, 2019 (11) TMI 1166 - CESTAT New Delhi 11.6 In view of above, the findings in the Impugned Order based on assumptions and presumptions cannot be sustained and confirmation of demand therein is fit to be set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation Agreement (Pure transportation activity) The Appellant is engaged to undertake only pure transportation activity of cement bags from one place to another place as per requirements from railway/godowns/depots directly to the customers. No activity other than transportation, such as handling, packing, loading or unloading etc., is undertaken under this agreement. For such transportation, the Appellant issues consignment notes. RUD-2,3,5,6 Treated as GTA service and Service Tax was payable by Ultratech under RCM. Dispute: Classification: Cargo Handling Service (as per revenue) 5 Primary transportation agreement The Appellant is engaged to undertake only pure transportation activity of cement bags directly from Plant locations of Ultratech to the customers. No activity other than transportation, such as handling, packing, loading or unloading etc., is undertaken under this agreement. For such transportation, the Appellant issues consignment notes. Annexure- 12 Treated as GTA service and Service Tax was payable by Ultratech under RCM. Disputed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h includes a body corporate. 12.6 Reference is further invited to Notification No. 30/2012-ST, dated 20.06.2012, which specified GTA services for the purposes of Section 68(2) of the Act, w.e.f. 01.07.2012 wherein the whole liability to pay Service Tax in respect of GTA services has been shifted to the service recipient. Application of legal provisions to activities carried out by the Appellant 12.7 Therefore, with regard to the first three categories of agreements as discussed above, full Service Tax liability has already been discharged. Further, fourth, fifth and sixth category of agreements, hereinabove, the same are pure transportation agreements without involvement of any other activity. The Appellant issues consignment notes in the fourth and fifth category of agreements, so it qualifies to be a GTA and on such GTA services rendered to Ultratech, the liability to pay tax rests with Ultratech under RCM. 12.8 In the sixth category of agreements, the consignment notes are issued by the main transporter itself. Therefore, the Appellant does not qualify to be a GTA in such transaction and its services are in the nature of transportation of goods by road, other tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Order. 14.2 Transportation charges of Rs. 93,80,073/- received by the Appellant from Ultratech for the transportation service provided under the Rake Handling Agent Agreement have already been charged to Service Tax, and Rs. 13,05,481/- has already been paid as such. 14.3 To the extent of Service Tax already paid by the Appellant contemporaneously during the relevant period, the confirmation of demand in the Impugned Order is liable to be set aside. 14.4 Further, the demand has been incorrectly calculated by the department as the alleged taxable value would be inclusive of the amount of Service Tax.Hence, for Service Tax calculation, the amount received by the Appellant should be considered as cum tax payment and Service Tax should be calculated accordingly. Extended period of limitation cannot be invoked. No interest is payable and no penalty is imposable. 15.1 It is submitted that the Appellant has not supressed any facts and the issues involved in the present matter pertain to interpretation of the contractual arrangements and legal provisions. 15.2 This is also clear from the different stands taken by the department itself at the stage of audit repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of double jeopardy. Rather the appellant-assessee have failed to pay service tax on the whole of the consideration received from the service recipient. They have provided service as defined under Section 65B (44) of the Finance Act and accordingly, they are liable to pay service tax on the same. Further held that the services involved in the present case are not stand alone transport services as claimed. Thus, the concept of Reverse Charge Mechanism was not applicable and the service recipient Ultratech was not required to pay the tax. Thus, the demand of service tax was held to be legally tenable and not bad in law. It was further held that in view of the findings, the contention of the appellant that they have been engaged in providing transportation service under several transportation contracts and hence, the same cannot be clubbed with cargo handling agreement, is not at all sustainable. 17. The learned AR places reliance on the precedent rulings of this tribunal in the case of i) Singh Transport Company vs. CCE (2018) 9 GSTL 201 Tribunal Delhi i) Adarsh Agency vs. CCE C. (2017) 6 GST 157 Tribunal Mumbai. 18. Having considered the rival contention, we fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is engaged to undertake only pure transportation activity of cement bags from one place to another. The scope of work as provided in the para-2 of the agreement (RUD 2), provides that the appellant shall place trucks for transportation of consignment of the company from railway platform/shed/godown to the various destinations including those of dealers/stockist/individual customers as per the company s instructions on regular basis. The transport work shall be mainly carried out to different places in Rajasthan from Mata ka Than godown under Jodhpur depot. The list of specified destinations is as per the approved freight list forming part of the agreement. The other conditions are similar to the earlier agreement referred to hereinabove. Thus, we find that under this agreement under the scope of work, the appellant have correctly treated the work as GTA service and service tax have been rightly discharged by the recipient Ultratech Cement Ltd under Reverse Charge Mechanism. Thus, the confirmation of demand on the appellant is bad and accordingly set aside. 21. Now we deal with the issue, where the appellant is not the GTA. The appellant have facilitated the transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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