Custom, Excise & Service Tax Tribunal
Shri Gulshan Verma, Prop vs Commissioner Of Central Excise & St, ... on 6 June, 2017
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. I Appeal No. ST/1428/2010-DB Date of Hearing/ Decision : 06.06.2017 [Arising out of Order-in-Appeal No. OIA-293-ST-D-II-2010 dated 12.07.2010 passed by the Commissioner (Appeals) Central Excise & ST, Delhi III] For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Shri Gulshan Verma, Prop. : Appellant [M/s. Bhagwati Roadlines] vs. Commissioner of Central Excise & ST, Delhi-II : Respondent
Appearance:
Shri Rakesh Jain, Advocate for the Appellant(s) Shri Satyapal, A.R. for the Respondent(s) CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Devender Singh, Member (Technical) Final Order No. 61053 / 2017 Per : Ashok Jindal The appellant is in appeal against the impugned order wherein the demand of service tax has been confirmed under the category of Cargo Handling Service for the year 2003-04 and 2004-05, by issuance of show cause notice dated 21.04.2009.
2. The facts of the case are that during the period under dispute, the appellant was transporting molasses from sugar mills to distillery by way of loading unloading. The Revenue is of the view that appellant is handling cargo and the invoices produced by the appellant shows the handling charges of molasses having received. Therefore, proceedings were initiated against the appellant to demand service tax under the category of Cargo Handling service in the year 2003-04 to 2004-05, by invoking extended period of limitation. The matter was adjudicated and demand of service tax was confirmed along with interest and various penalties under Finance Act, 1994. On appeal, the ld. Commissioner (Appeals) confirmed the same. Aggrieved from the said order, the appellant is in appeal before us.
3. Ld. Counsel for the appellant submits that the activities of transporting molasses by road through containers from sugar mills to distilleries is classifiable under GTA services, therefore, they are not liable to pay service tax. The appellant relied upon the CBEC Circular No. 104/07/2008-ST dated 06 Aug 2008 and Circular No. 186/5/2015-ST dated 05.10.2015. Alternate submission of the ld. Counsel is that there are only three invoices which are issued by them for handling charges. These invoices include amounts of Rs. 6,251/-, 3,50,098/- and Rs. 3,24,979/- respectively. Rest all the other invoices have been raised by the appellant for commission received for loading-unloading of molasses from sugar mills to distilleries. It is his submission that if contention of the Revenue is to be taken as correct, in that circumstances the appellant is liable to pay servicer tax only on these three invoices. Therefore, he prays that the impugned order is to be set-aside.
4. He also submitted that extended period of limitation in the facts and circumstances of the case is not invokable as the activities of transportation/ handling was itself in the knowledge of the department. Therefore, show cause notice issued by invoking extended period is not sustainable.
5. On the other hand, ld. AR supported the adjudication order and submits that the adjudicating authority has examined the issue and hold that as the invoices shows handling charges, the same are covered under Cargo Handling service. Accordingly, he submits that impugned order is to be upheld.
6. Heard both sides and considered the submissions. We do agree that the condition that if the goods are transported by road and loading-unloading has been done by the assessee, the same is covered under GTA service as clarified by Circulars mentioned hereinabove. The said circulars also clarifies that if the main service is Cargo Handling service, in that circumstances the service tax has to be demanded under the category of Cargo Handling services. Admittedly, the appellant has shown three invoices for handling charges which is recovered by them from the service recipient. In that circumstance, we hold that appellant is liable to pay service tax for these three invoices i.e. invoice No. 1 dated 05.12.2003 for Rs. 6,251/-, invoice No. 23 dated 31.03.2004 for Rs. 3,50,098/- and invoice No. 11 dated 27.09.2004 for Rs. 3,24,979/- along with interest at the applicable rates of service prevailing during the relevant period. In that circumstance, the demand of service tax on these invoices is upheld. The appellant is also liable to be penalised under Section 78 for the said amount and we hold that penalty as per Section 78 of the Finance Act, 1994 is payable by the appellant. It is clarified that if the appellant pays whole of service tax amount along with interest and 25% of service tax as penalty, within 30 days from the date of recipient of this order, the penalty shall be reduced to 25% of the amount of service tax. If the appellant is failed to do so, then the appellant shall be liable to pay penalty equivalent to the service tax demanded in the impugned order.
7. With these terms, the appeal is disposed of.
(Order dictated and pronounced in the court) Devender Singh Member (Technical) Ashok Jindal Member (Judicial) KL 4 Appeal No. ST/1428/2010