9911796707
TMI Blog2024 (9) TMI 1360X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as under: - Year Income as per ST-3 returns Income as per profit and loss account Income as per Ledger account 2005-06 16,55,210 5,76,65,766 5,77,13,855 2007-08 3,07,94,919 6,86,64,352 6,84,45,631 2008-09 6,86,38,888 13,09,94,807 13,34,02,259 2009-10 15,24,77,900 20,68,97,594 21,20,43,656 2010-11 27,93,78,097 2.1 The appellant vide letter dated 22.11.2010 submitted that the short payment/differential amount is due to the exempted services provided by them which are not attracting service tax. They submitted that services related to co-loader service and another service related to Air-Freight charges on exports do not attract service tax. They further submitted that as per Notification No. 29/2005 dated 15.07.2005, the Government of India has granted exemption from service tax in respect of services provided by Air Craft Operators in relation to transport of export goods. 2.2 A show cause notice dated 03.10.2011 was issued for the period 2006-07 to 2010-11 to the appellant on the ground that the appellant had provided the courier agency services for the whole amount as reflected in their ledger and suppre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices; that in the present proceedings, the entire difference in receipts is presumed to be taxable service whereas no service tax payable on activities which are different and distinct from the taxable service as courier agency. The appellant further claimed that this is a pure matter of interpretation and all the facts are on record and in such a factual situation of difference in opinion as to the classification and taxability, is a healthy difference and does not indicate any intention to evade and such healthy difference cannot invite extended period of limitation and penalty. 3.1 The Ld. Commissioner vide impugned order-in-original confirmed demand of Rs. Rs. 2,82,62,810/- under Section 73(1) besides demanding interest under Section 75 and imposing penalties under Sections 76 & 78 of the Finance Act, 1994. Now the appellant is before us against the impugned order. 3.2 During the course of hearing Ld. Counsel Shri Hasit Dave appearing on behalf of the appellant argued that the appellant, in addition to providing courier agency services (on which service tax is already paid), also undertakes the export of cargo by air from one airport to another in a foreign country. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e services of a person, either directly or indirectly; In the present case none has accompanied the goods; (iv) the person whose services are so utilised should carry or accompany such documents, goods or articles. As mentioned above none has accompanied or carried the goods. Further, the Hon'ble High Court has also observed that unless the activity falls within the ambit of charging section by clear words used in the section, no one can be taxed by implication. A charging Section has to be construed strictly. If a person has not been brought within the ambit of the charging section by clear words, he cannot be taxed at all. 3.3 He further relied upon Board Circular issued under F. No. 341/43/96TRU dated 31.10.1996 claiming that it has been clearly clarified that doorto-door delivery of goods, articles or thing is essence of courier agency services; that if the transporter of goods deliver the goods on door-to-door then he ceases to be the transporter and becomes the courier agency service provider. In other words, if the person does not deliver the cargo on door-to-door delivery basis then his activity will be classified as transporter only. The Appellants have un-disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o documentation, or the manner of invoicing inter-se between various entities involved in the transactions, whether the invoices were bearing freight charges upto airport or the end destination. Two consignments which has been discussed in the impugned order are discussed as under : (a) The first one is about GIHED Sales income shown in Rs. 81,78,947/- in their profit and loss account for the year F.Y. 2008-09, for which the appellant stated that GIHED (Gujarat Institute of Housing and Estate Developers) had participated in World Gujarati Conference at New Jersey USA; that around thirty exhibitors from Ahmedabad exhibited their current projects in India; that they (The Freight Centre) had taken care of complete logistics from Ahmedabad to USA for GIHED group members; that M/S. The Freight Centre and M/s. Penta Freight Pvt. Limited had jointly handled the cargo movement, that Sh. K.A. Shah(the prop.) also personally visited to USA to help the local agent to identify the cargo of different exhibitors; that after end of Exhibition event the balance cargo was brought back by sea for which services were provided by M/S. Penta Freight Pvt. Limited. The cargo was handed over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12/- per kg. The Circular issued by TRU Circular F.No. 341/43/96-TRU, dated 31-10-1996 referred above clarifies the position in this regard as under :- "It has been represented that some courier agencies undertake comprehensive business and provide integrated transportation, warehousing, packing, inventory management, etc. Doubts have been expressed whether courier agencies are liable to pay service tax in respect of service provided in relation to warehousing, packing, inventory management, etc. It is clarified that where even the above facilities are relatable to door to door transportation and are undertaken by the courier agencies themselves, the charges for such facilities are also includible in the gross amount and service tax collected accordingly. " 31. Further in the case of M/s. Infinity Logistics, Mumbai it appears that the said assessee has provided courier agency service to M/s. Infinity Logistics, Mumbai as the said assessee made arrangement for delivery of the goods belonging to M/s. XL Telecom and Energy Ltd, Secunderabad from India to Madrid, Spain. They delivered the goods through M/S. Federal Express Corporation. M/s. Federal Express Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Federal Express Corporation and the airway bill were issued in the name of M/S. X L Telecom & Energy Ltd. This is nothing but modus adopted by the assessee to show transaction on paper only and thereby evade payment of service tax. It appears that in this case also the assessee had provided courier service to M/S. X L Telecom & Energy Ltd." 9. We have examined the shipping documents of the above consignments. In the case of GIHED documents, the appellant has billed the multiple exhibitors of GIHED in their individual names C/o GIHED Stall No., Penta Freight Pvt. Limited has billed in the name of appellants while issuing Housed Airway Bill in the name of GIHED, Ahmedabad with destination at GIHED, World Gujarati Conference, USA and airlines Jet Airways/Continental Airlines has issued Air-Way Bill to Penta Freight Pvt Limited. Whereas the bills issued by the appellants to individual exhibitors ranges approx. from 250 Kgs to 1000 kg. per consignment, Housed Airway Bill/ Airway Bill issued by Peta prefight Pvt Limited/ Airlines are 5000 Kg. plus thus aggregating multiple consignments of the exhibitors. The description as per Airway Bill reads as " Exhibition cargo as for display pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o examine is that normally a courier agency aggregates small consignments of documents, goods or articles and there are different senders and the place of destination for door-to door delivery. When many persons avail services of a transporter in pursuance of a common business (like the exhibition in GIHED cargo discussed above), and a huge cargo load comprising in tons is delivered at a particular destination, such a transport cannot be considered to be a "courier agency service" but would fall under the cargo service. Therefore, in our considered view both the above specific cases of GIHED and the Infinity Logistics would not be covered under the service of "courier Agency Service". Further, in our considered view when a "courier agency service" is provided for door-to-door delivery, all the transporters taking responsibility to deliver the consignment from the booking stage to the final door delivery would fall under the courier agency service and the cascading effect of taxation can be avoided by input credit claim. It is now well established that a sub-contractor is obliged to discharge tax independent of the main contractor. 13. As already stated unfortunately we have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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