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TMI Blog2023 (10) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... act would be classifiable as GTA service only. This view has been taken by this bench in in the case of M/S MAA KALIKA TRANSPORT PRIVATE LIMITED VERSUS COMMISSIONER OF CGST CENTRAL EXCISE, ROURKELA, ROURKELA [ 2023 (7) TMI 435 - CESTAT KOLKATA] . The recipient has agreed to pay service tax as per the work order. Thus, by following the Board Circulars and the decision cited, it is held that the service rendered by the Appellant in this case is GTA service and hence the demand confirmed in the impugned order under Cargo Handling Service is not sustainable. Demand of service tax on Hiring of Vehicle Service - HELD THAT:- The Appellant have provided Buses to Eastern Coal Field Ltd.(ECL) for transporting/carrying DSP Employees/Staffs from their residents at the Township Area to Plant Back - The buses were also used for transporting children to their school and back. As per Section 65(115), Tour Operator means any person engaged in planning, scheduling, organizing or arranging tours by any mode of transport. In this case the buses provided by the Appellant carry the employees/staff from the factory to residence and back. Similarly, children were carried from residence to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment contended that the Appellant is liable to pay service tax on this service under the category of Tour Operator Service and demanded service tax from the Appellant. When Rent-a-Cab service was introduces, the department contended that the service rendered can be classified either under Tour Operator service or under Rent-a-Cab service. 3. Accordingly show cause notice dated 22.10.2009 was issued demanding service tax on the total value of service amounting to Rs.7,72,50,676/- dor the years 2004-05 to 2008-09 on GTA, Tour Operator service, Rent-a-Cab service and Cargo Handling Service, without any bifurcation of taxable value for each of these services separately. The Notice was adjudicated by the Commissioner wherein he confirmed the demands alonf g with interest without specific bifurcation of service tax under each category of service separately. He also equal amount of tax as penalty under section 78 of the Finance Act, 1994. Penalty was also imposed under sections 77(1)(a) and 77(2) of the Finance Act, 1994. Aggrieved against the impugned order, the Appellant has filed the present appeal. 4. In their grounds of appeal, the Appellant made the following submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered as Tour Operator Service or Renting a Cab service . The demand is not very specific. As per the impugned order, the service may fall under either of the category. They stated that when the demand is not specific with respect to any particular service, the demand is not sustainable. In similar facts and circumstances, it has been held that these service can t be considered as Tour Operator services and cited the following decisions in support of their contention: (i) T.N.STATE TRANS.CORPN.(KUMBAKONAM) LTD. Vs C.C.E., TRICHY[2009(14) S.T.R. 760 (Tri.- Chennai)] (ii) L.N.GUPTA TRANSPORT CO. Vs. COMMISSIONER OF C. EX., NAGPUR[2016(42) S.T.R. 491(Tri.-Mumbai)] (iii) The demand in this case has been raised based on the Balance Sheet figures only. They have not suppressed any information. The department was fully aware of the activities undertaken by them. Under these circumstances, extended period cannot be invoked and penalty also cannot be imposed. 5. The Ld. A.R. reiterated the findings in the impugned order. 6. Heard both sides and perused the appeal records. 7. We observe that the Appellant has been provided the services of transportation of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. 334/4/2006-TRU dated 28.2.2006 (para 3.2 and 3.3) and F. No. 334.1/2008-TRU dated 29.2.2008 (para 3.2 and 3.3), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided 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 issued by Board 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 service. Accordingly, be relying on the Board Circulars and the decisions cited above, we hold that the contracts are essentially meant for transportation of goods and other activities are naturally bundled along with this principal service. Once the services rendered are classified as Transportation Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able service the appellant had provided. In the absence of an allegation of having provided a specific taxable service in the show cause notice and in view of the failure in the adjudication order as well, neither the show cause notice nor the consequent adjudication order could be sustained. Xx xx xx xx xx xx xx 13. We have noticed earlier that the show cause notice itself adverts to the fact that the appellant had provided copies of 20 work orders executed in relation to CWG Projects, particulars of which are set out in a tabular form in para 5 of the show cause notice. From the description of the works in this table, officers could have classified the several works into the appropriate taxable service which may appropriately govern rendition of these services. In any event officers are not handicapped and the Act provides ample powers including of search under Section 82 of the Act to obtain information necessary to pass a proper, disciplined and legally sustainable adjudication order. The disinclination to employ the ample investigatorial powers conferred by the Act is illustrative of gross Departmental failure and cannot afford justification for passing an in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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