9911796707
TMI Blog2024 (6) TMI 911X X X X Extracts X X X X X X X X Extracts X X X X ..... f unloading the goods at railway siding, guarding thereof, yard management, inventory management and loading of the goods to the wagons were in the nature of being incidental to the transportation of the goods from the mines to the railway sidings. The contract in the present case is a composite works contract and cannot be called upon for vivisection, in terms of rates for various activities being provisioned in the said Work Orders. Mere mentioning of separate rates for various activities, render the composite contract as vivisected, particularly in the light of the Board s Circular dated 20.02.2008 clarifying that the method of charging (billing) was not determinative of whether the service was in the nature of a multiple service or otherwise - there is nothing in the impugned work order, so as to be suggestive of submissions of Bills by the appellant to TISCO, based on individual activities at the specified rates. The service rendered by the appellant would need to be considered as a GTA service and not required to be categorized separately into cargo handling service or business auxiliary service . The impugned order is not in accordance with law and therefore liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir proposition the appellant amongst other reasons has also placed reliance on the clarification issued by the Board vide Circular No.104/7/2008-ST dated 06.08.2008. 4. The appellant has also pleaded that the show cause notice dated 21.04.2011 is barred by limitation as the same has been issued to them for the period of 2005-06 to 2009-10 and ST-3 returns were filed regularly. Their contention being that the activities undertaken were in the knowledge of the department since 2007, Therefore, no suppression on the part of the appellant could be attributed to and extended period of limitation was therefore not invokable. 5. We have heard the rival contentions of the two sides and have perused the records. The short question to be decided is whether the appellant is liable for benefit of being a goods transport agency operator or is required to be subjected to Service Tax as a provider of cargo handling and business auxiliary services. 6. We also find that the appellants have produced on record a certificate from TISCO duly countersigned by the jurisdictional Central Excise authorities that the appellant had handled the cargo meant for export and therefore it was exempted from Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te from Sukinda Chromite Mines to Jajpur Road. The fact of unloading the goods at railway siding, guarding thereof, yard management, inventory management and loading of the goods to the wagons were in the nature of being incidental to the transportation of the goods from the mines to the railway sidings. 9. It can be noticed that the cost fragmentation into loading, unloading, yard management etc. is merely for ease and reference of payment calculations and at best can be considered a vivisected part of the contract. The appellant in support of their contention that the appellant was merely performing the services of a GTA and not as a cargo handling service has drawn attention to the invoices raised and the work order assigned (relevant samples of such documents is scanned herein below for reference) to emphasise that the employer TISCO have engaged the appellants for purpose of transportation of Chrome Ore Concentrate from Sukinda Chromite Mines to Jajpur Road, as GTA. Further emphasizing their ground, it is pointed out that an order change issued by TISCO, in favour of the appellant, also speaks of the terminology of the work as Transportation of Chrome Ore . 10. In view of afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement 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. 334/4/2006-TRU, dated 28-2-2006 (para 3.2 and 3.3) [2006 (4) S.T.R. C30] and F. No. 334/1/2008-TRU, dated 29-2-2008 (para 3.2 and 3.3) [2008 (9) S.T.R. C61], a composite service, even if it consists of more than one ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issues consignment note, by whatever name called. The service provided is a composite service which may include various ancillary services such as loading/ unloading, packing/unpacking, transshipment, temporary storage etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by GTA himself or may be sub-contracted by the GTA. In either case, for the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of ancillary services provided in the course of transportation of goods 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. 4. A single composite service need not be broken into its components and considered as constituting separate services, if it is provided as such in the ordinary course of business. Thus, 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. While taking a view, both the form and substance of the transaction are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sportation of goods by road with nothing to establish that the amount charged for the service was not inclusive of the said incidentals, evidently support the view of provisioning of the GTA service , by the appellant. 16. We further note and it has emphatically been stated by the appellant on record that with regard to GTA service it is TISCO, who are required to pay the service tax as service receiver in terms of Rule 2(d)(B(V) in terms of Service Tax Rules, 1994. It is also observed that the appellant have been providing the said service to TISCO since 2004 and had obtained the aforesaid service tax registration only in 2007 having filed the ST-3 returns periodically with reference to the nature of the service discharged solely to TISCO, there being no change in billing methodology, awarding of contract or the nature of work executed. It is therefore not possible to implicate suppression on the part of the appellant and subject them to penal consequences. We are thus of the view that the appellant is not liable for any penal consequence as the factual premise was in the knowledge of the department since June 2007, if not earlier, when the appellant had obtained Service Tax regis ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
