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TMI Blog2023 (12) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... 012 it was noticed by the department that they were providing services to M/s Ultra Tech Cements and M/s Zuari Cements. As a clearing and forwarding agent they were undertaking loading of cement bags from railway wagons to truck, transporting them to sales point or godowns and also unloading. In regard to the services rendered to M/s Zuari Cements, the appellant had collected charges including freight (for transportation) and discharged service tax on the entire amount collected. In regard to the services rendered to M/s Ultra Tech the appellant had entered into two separate agreements. One agreement for C & F providing services other than transportation and another agreement for transportation of goods alone. Thus appellant discharged serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucks, transporting them to destination and unloading them is provided by appellant as a clearing and forwarding agent. The entire operation falls within the service of clearing and forwarding service. Thus the appellant ought to have included the freight charges also in the taxable value for discharging the service tax liability. It appeared that there was short payment of service tax Rs. 25, 15, 658/- due to non-inclusion of freight charges in the taxable value. Show Cause Notice dated 01.05.2013 was issued for the period April 2009 to September 2011 invoking the extended period and proposing to demand the short paid service tax along with interest and for imposing penalties. After due process of law, the original authority confirmed the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax on freight charges as it falls under GTA services and because M/s ultra Tech had agreed to pay the service tax. There was no intention to evade payment of service tax. The show cause notice issued invoking extended period is not sustainable as there is no evidence adduced that appellant has suppressed facts with intend to evade payment of service tax. The Ld. Counsel prayed that the appeal may be allowed. 3. The Ld. Authorized Representative Shri M. Ambe appeared and argued for the department. The Ld. Authorize Representative adverted to the definition of C & F services and submitted that, the appellant cannot segregate each activity involved in clearing forwarding services so as to exclude part of the consideration from the taxable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. It is asserted by the Ld. Counsel that the appellant is a proprietary concern and when M/s. Ultra Tech Ltd informed them that they wanted a separate agreement for GTA services and that they would discharge the service tax, the appellant agreed accordingly. The letter issued by M/s Ultra Tech Ltd dated 27.06.2013 establishes that the service tax has been paid on freight charges by M/s Ultra Tech Ltd. However, they are discharging service tax only as service recipient Further it is also brought out that the appellant has collected mark up on the freight charges. They have also used their own trucks to provide transportation of goods. From these facts it would require to remand the matter to verify such details and to quantity the demand o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchkula Vs M/s Kulcip Medicines (P) Ltd 2009 (2) TMI 89 Punjab & Haryana High Court, while interpreting the definition of C & F service, it was held that the levy of tax would not be attracted if the clearing operations are separated from forwarding operations, as it involves only one of the two activities. Contrary, CGST & CE Indore vs M/s Carry Fast Agency 2023 (9) TMI 770- CESTAT New Delhi, it was held that if the activities of "clearing" and "forwarding" is rendered by same person and by separate agreements, the freight forwarding is to be included in the taxable value for C & F service. Thus the issue is interpretational in nature. 6.2 Apart from the allegation that the appellant had bifurcated the contracts there is no positive act, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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