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TMI Blog2023 (7) TMI 435X X X X Extracts X X X X X X X X Extracts X X X X ..... is observed that the contract is a composite contract primarily for the purpose of transportation of coal beyond 180 to 200 KM. The activities like loading, unloading, obtaining delivery orders etc are incidental or ancillary to the transportation service. The contract has not provided any separate charges for these activities. The composite contract cannot be vivisected to arrive at the value of service for each activity artificially. Relying on the Board Circulars Circular No. 104/07/2008-S.T. dated 06.08.2008 and Circular No. 186/5/2015-ST dated 05.10.2015, it is held that the contracts are essentially meant for transportation of goods and other activities are naturally bundled along with this this principal service. Once the services rendered are classified as Transportation Service, the liability of payment of service tax on these services was not on the Appellant, as the service recipients in all these cases are Companies registered under Companies Act, 1956/2003, and the liability to pay service tax is on the recipients of service as provided under Rule 2(1)(d)(i)(B) of the Service Tax Rules, 1994. Scope of SCN - Classification of the service rendered by the Appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.9,50,54,524/- for the period from 01.04.2015 to 31.03.2016, under the category of 'Cargo Handling Service'. The said Notice was adjudicated vide Order-in-Original dated 10.12.2021, wherein the Ld. Commissioner has confirmed the Service Tax demand Rs.9,50,54,524/-including Cess along with interest and imposed penalty of Rs.9,50,54,524/- under Section 78(1) of the Act and penalty Rs. 10,000/- under Section 77(2) of the Act. Aggrieved against the impugned order, the Appellant has filed the present appeal. 2. In the instant case, the Appellant claimed that they have provided Transportation of Coal Services upto a distance of 200 km against various work orders, on collection of total value of Rs.65,56,50,736/-. The details of such work orders executed by the Appellant during the relevant period are furnished below: Sl. No. Work Order No. Date Party Nature/Scope of work Value of Service (1) (2) (3) (4) (5) 1. KWPCL/TC/COAL/028 dated 21.12.2016 M/s Korba West Power Company Ltd, Lifting and Transportation of eauction Coal from Basundhara Mines of MCL to KWPCL Thermal Power Plant (Distance 180 km.) 6,47,93,932/- 2. SRPL/Trans/03 dated 17.06.2015 M/s Saffron Resources Pvt. Ltd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in the Show Cause Notice on this count. Hence, they contended that the findings in the impugned order are beyond the scope of Show Cause Notice and hence not sustainable as held by the Hon ble Apex Court in the case of CCE Vs. Shital International reported in (2011) 1 SCC 109. 7. The work orders awarded by M/s Saffron Resources P. Ltd., M/s Vedanta Ltd., M/s Korba West Power Co. Ltd., M/s Scan Steels Ltd., and M/s T.R. Chemicals Ltd., have been analyzed in Paras 13.2 to 13.5 of the impugned order. The Ld. Commissioner failed to appreciate that the obligations, considerations under the contract and terms of contract are different and distinct and cannot be clubbed to ascertain the nature taxable service. In the case of CST Vs. Repco Home Finance Ltd., Reported in (2022) 101 GSTR 430 (CESTAT-Chennai) the Tribunal, Chennai has held that obligation/considerations of contract should not be confused with conditions of contract. The Appellant stated that the contract in these cases are essentially for transportation and all other elements of the contracts are incidental and ancillary and applying the test of essentiality set out under Section 66F(3)(a) of the Act, the contract would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g contract on tonnage basis, like provision of trucks along with helpers, supervisors, HSD for loading and transportation of Coal from Kula and Basundhara mine to respective plan site of M/s Hindalco Industries Ltd, and M/s OCL India Ltd., The said work order further specifies that the contractor has to follow safety norms of Hindalco and OCL in respect of Operators and equipment deployed for the work. Thus, the Noticee is not doing merely a transportation job. Rather they are providing multiple activities of providing loading, unloading, handling and transportation of coal from mines to plant site of their service recipients using required specific equipment, supervisors, helpers and operators. 13.3 on scrutiny of the scope of work specified under Agreement dated 30.05.2015, issued by M/s Vedanta Limited Aluminum Power (formerly Sesa Sterlite Ltd.,) (mentioned at Sr. No. 2 of the table I above,), I find that the scope of work includes multitude of activities like lifting and transportation of coal from mines of M/s MCL to CCP/IPP of M/s Vedanta Ltd., under running contract on tonnage basis together with other service activities like arranging Road Delivery Order (RDO) from Mine ow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. In such a case, whether the intermediary or ancillary activities is to be treated as part of GTA service and the abatement should be extended to the charges for such intermediary or ancillary service? Clarification: GTA provides a service in relation to transportation of goods by road which is a single composite service. GTA also issues consignment note. The composite service may include various intermediate and ancillary services provided in relation to the principal service of the road transport of goods. Such intermediate and ancillary services may include services like loading/unloading, packing/unpacking, transshipment, temporary warehousing etc., which are provided in the course of transportation by road. These services are not provided as independent activities but are the means for successful provision of the principal service, namely, the transportation of goods by road. The contention that a single composite service should not be broken into its components and classified as separate services is a well accepted principle of classification. As clarified earlier vide F.No. 334/4/2006TRU dated 28.2.2006 (para 3.2 and 3.3) and F. No. 334.1/2008-TRU dated 29.2.2008 (para 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion are to be taken into account. The guiding principle is to identify the essential features of the transaction. The interpretation of specified descriptions of services in such cases shall be based on the principle of interpretation enumerated in section 66 F of the Finance Act, 1994. Thus, if ancillary services are provided in the course of transportation of goods by road and the charges for such services are included in the invoice issued by the GTA, and not by any other person, such services would form part of GTA service and, therefore, the abatement of 70%, presently applicable to GTA service, would be available on it. 16. The clarifications cited above clearly establishes that when a contract is entered for a composite contract for transportation service including various intermediate or ancillary services provided in relation to the principal service of road transport of goods like loading/ unloading, packing / unpacking, transshipment, warehousing etc., which are provided in the course of transportation, such contract cannot be vivisected. It will be treated as a contract for transportation only as the other services are naturally bundled together with the principal serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raised by the Appellant is that the demand has been confirmed on the basis of the data received from Income Tax department. No effort was made by the department to ascertain whether the amount received by the Appellant was on account of rendering of any taxable service on which the Appellant was liable to pay service tax. There is no finding in the impugned order to this effect. We observe that there is no new material evidence brought on record for raising the demand of service tax on the value mentioned in the records received from the Income Tax department. The demand cannot be raised merely on the basis of the data received from the Income Tax Department, without any corroborating evidence to substantiate that the value received were in connection with taxable service rendered by the Appellant. This view has been supported by the following judgments:- (i) Larsen Toubro Ltd., Vs. ACST Reported in (2023) 2 Centax 327 (Cal.); (ii) CST Vs. Hindustan Cables Ltd., reported in 2022 (382) ELT 188 (Cal.) 20. Regarding invocation of extended period to demand service tax, the Appellant stated that there is no suppression of fact involved in this case. The department itself was not clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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