Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  The GSTN has issued an Advisory dated 21.04.2026 about the introduction of an Offline Tool for the Invoice Management System (IMS)  *  CBIC extends due dates for filing of FORM GSTR 3B  for the month of April 2026 *  Interest cannot be imposed in adjudication order, if not demanded/quantified in show cause notice : Allahabad HC *  Wheelchairs with toileting facility eligible for exemption: CESTAT affirms customs duty exemption to importer *  Industries urge GST council to allow inverted duty refunds on input services *  Tamil Nadu GST dept introduced virtual hearing facility for GST appeals under under section 107 of the TNGST act: detailed guidelines  *  CIC urges authorities to implement GST evasion complaint tracking system *  Even if the assessee opts "NO" for personal hearing in form DRC-06 ,The mandatory requirement under section 75(4) to grant opportunity of hearing cannot be waived:Gujarat High Court  *  Glufosinate imports curbs imposed by govt *  Government extends Re-import period for exported cut & polished diamonds *  CIC flags lack of tracking system for tax evasion complaints,urges GST authorities to improve transparency *  No Custodial Interrogation needed in GST fraud case based on documentary evidence already in Department's Possession : Chattisgarh HC *  Orders under section cannot be sustained if passed without considering the taxpayer's objections and without granting a personal hearing:Gujarat High Court *  Mere cancellation of supplier's registration cannot,by itself,justify denial of ITC or cancellation of the recipient's registration:Bombay High Court *  High Court sets aside GST notice citing factual errors and natural justice violations *  Provisional Bank Attachment under Section. 110 of Customs Act Unsustainable Beyond Statutory period without Extension order: Bombay HC orders to defreeze accounts *  Post Clearance MRP Alteration by Distributor Does not attract Differential Customs Duty: CESTAT *  DGFT Expands scope of 'Screws' classification under RoDTEP Scheme  *  E-way bills surze to all time high of 140.6 million in March *  GST Exemption Allowed on Pure Labour Services for Standalone Houses: AAR  *  GST Payable Only on Margin in Second-Hand Car Sales, Subject to Strict Conditions and No ITC Claim: AAR *  DGFT rolls out procedure for allocation of calcined coke *  GST portal update : Pre-deposit amount now editable in Appeals *  J&K HC declared TMT scrap a 'Specified Good' eligibile for GST refunds under Support Scheme  *  Pigmy agents are employees of banks; no GST can be levied on commission  paid to them : Karnataka HC *  DGFT Revises HS Code Description for Screws Under RoDTEP *  GST Registration Cancellation Invalid Without Proper Service of Notice: Allahabad High Court. *  Bengaluru CGST | GST Backlog Appeals Deadline Fixed at June 30, 2026 *  No Time Bar on Refund of Service Tax for Services Not Rendered: CESTAT  Remands Indiabulls Case for Unjust Enrichment Check. *  Supreme Court Holds Renewable Energy Incentive Must Benefit Generators, Not Be Adjusted in Tariff
Subject News *   Delhi HC Quashes Order, Says Reminder Cannot Validate Improperly Served GST SCN *  KARNATAKA HIGH COURT REMANDS GST SHORTFALL MATTER DUE TO ABSENCE OF PERSONAL HEARING   *  CESTAT cancels confiscation and penalties on imported computer cabinet cases: Custom duty restricted to 111 surplus units *  Deposit of tax during search or investigation cannot be treated as 'Voluntary Payment' : Bombay High Court *  Section 76 of the CGST cannot be invoked where the tax has already been duly deposited, even if through another registration of the same entity: Madras High Court *  Sec 74 allows use of material regardless of source; illegality or flaws in section 67 search do not vitiate valid adjudication: HC *  Inter-State transfer of ITC on Amalgamation permissible as given under section 18(3) read with rule 41 of the CGST rules, 2017: Gujarat High Court *  HC: No GST on commisson paid to Pigmy Agents *  IGST refund denial on illegible bill of lading invalid absent chance to furnish docs; merit reconsideration in appeals directed: HC *  ITC is not admissible on GST paid on leasehold rights of land used fpr setting up an air seperation plant: AAAR,Tamil Nadu *  GST: No penalty under Section 74 after voluntary ITC reversal due to non-existent supplier : High Court *  TN AAAR denies GST ITC on Land Lease under Sec. 17(5)(d) for setting up plant and machinery *  GST proceedings quashed as notices sent to old address, despite updated address in registration *  Importer Can’t Be Penalised for Alleged IGCR Procedural Lapses Without Evidence of Departmental Error: CESTAT *  Structured Healthcare Training Not ‘Charitable Activity’, 18% GST Payable: AAR  *  CESTAT As The Appellate Authority For Central Sales Tax Disputes: A Paradigm Shift Under Finance Act, 2023 *   Rs. 25K Cost Imposed On SGST Joint Commissioner for Attaching Bank  Accounts Without Forming Mandatory “Opinion”: Bombay HC *   Ex-Parte GST Order Without Hearing Violates Natural Justice: Karnataka  High Court Quashes Adjudication and Bank Attachment.  *   Retrospective GST Cancellation Can’t Invalidate Genuine Transactions:  Jaipur Commissioner (Appeals) Quashes Rs. 95,670 ITC Demand. *   GST Pre-Deposit Non-Compliance: Allahabad High Court Allows Appeal  Subject to Rs. 30 Lakh Balance Deposit, Recognises Offline Filing. *  Documentary Nature of Evidence: Allahabad High Court Grants Bail in Rs. 32.66 Crore Fake ITC Fraud Case *  Supreme Court Flags Systemic Bias in Army’s Permanent Commission Process for Women Officers *  Re-Determination of Land Compensation Can Be Based on Appellate Court Awards, Clarifies Scope of S. 28-A: Supreme Court. *  Supreme Court Imposes Rs. 5 Lakh Costs On Rent Authority Officer For Acting Beyond Jurisdiction. *  DGGI Meerut | Court Denies Bail to Accused in Claiming Fake ITC And Export Refunds *  Denial of GST Rate Revision Benefit to Contractor Violates Article 14: Rajasthan HC *  GST Registration Cancellation for Non-Filing of Returns: Gauhati High Court Directs Restoration on Compliance. *   Supreme Court Quashes FEMA Adjudication Orders, Revives Proceedings at  Show Cause Stage. *   Higher Rank, Harsher Punishment Justified: Supreme Court Restores Dismissal  of Bank Manager in Misappropriation Case. *   Limitation for Export Refund to Be Counted from Foreign Exchange Realisation,  Not From Export Invoices Issuance: CESTAT  

Comments

Print   |    |  Comment

PJ/Case law/2013-14/1897

Whether service tax leviable on transportation activity separately when it is integral part of repair and maintenance activity?

Case:- COMMISSIONER OF C.EX., LUCKNOW VERSUS TECHNICAL ASSOCIATES LTD.

Citation:- 2013(31) S.T.R. 538 (All.)

Brief Facts:- Present appeal under Section 35G of the Central Excise Act, 1944 has been preferred against the impugned order dated 20-06-2011 passed by Custom, Excise & Service Tax Appellate Tribunal, New Delhi in Appeal No. ST/1536/2010-CU (DB), Commissioner, Central Excise, Lucknow v. M/s. Technical Associates [2011 (24) S.T.R. 567(Tribunal)].

The brief facts of the case are that the respondent –M/s. Technical Associates Limited is engaged in rendering the services of maintenance and repair of Transformers. The respondent entered into an agreement with U.P. Power Corporation Limited for repair and testing of damaged Transformers whereby respondent has to lift the damaged Transformers and after repair, re-install the same.

During the scrutiny, the A.O. found that during the period from 1-4-2006 to 31-3-2007, the respondent has lifted the damaged Transformers by their own Trucks and charged a sum of Rs. 5,31,400/- from U.P. Power Corporation on account of "maintenance and repair" of the old and damaged Transformers. The A.O. opined that on this amount, the respondent is liable to pay Service Tax amounting to Rs. 66,294/- which was not paid by him. So, the A.O. has made a demand of Service Tax of Rs. 66,294/- for the period 1-4-2006 to 31-3-2007. On the similar analogy, the A.O. raised demands of Service Tax of Rs. 74,137/- for the period 14-2003 to 31-3-2006, and Rs. 40,553/- for the period 1-4-2007 to 31-3­2005. In addition to above, the A.O. levied a penalty of Rs. 5000/- under Section 77 of the Finance Act, 1994. The A.O. also levied another penalty of Rs. 1,80,954/-under Section 78 of the Finance Act, 1994.

Being aggrieved, the respondent-assessee has filed an appeal before the First Appellate Authority, who vide its order dated 27-7-2010 has deleted the above mentioned demand of Service Tax and cancelled both the penalties. Not being satisfied, the department has filed an appeal before the Tribunal, who vide its impugned order affirmed the order of the First Appellate Authority and dis­missed the appeal filed by the department. Not still being satisfied, the depart­ment has knocked the door of this Court by filing the present appeal.
 
Appellant Contentions:-Learned counsel for the department relied on the order of the A.O. He submits that transportation is a taxable service. Therefore, the value of taxable service would also include the cost of transportation and, as such, the tax liability would arise on the total gross value paid on account of "repair and maintenance". He further submits that transportation charges should be included in the gross value and in the instant case, the respondent has not paid Service Tax on the amounts in question. So, the respondent is liable to pay Service Tax along with interest and penalty as per Section 64(50b) of the Finance Act, 1994. He read out this Section, which on re­production, reads as under:

"(50b) :- 'goods transport agency' means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called.'
Lastly, he made a request to set aside the impugned order passed by the Tribunal.
 
Reasoning of Judgment:-We have heard learned counsel for appellant-department and gone through the materials available on record. It may be mentioned that service sector in India is growing signifi­cantly can be discerned from the statistical information furnished by Excise De­partment of Government of India. It is interesting to note that in India the contri­bution of service sector to the GDP has grown to such an extent as to surpass the share of agriculture and industry at a rapid phase, when conferred to other indu­strialist countries.

In the instant case, the respondent entered into an agreement with the U.P. Power Corporation Limited for repair and maintenance of the damaged Transformers. Clause 5.1 of the said contract/agreement, on reproduction, reads as under:

"5.1 :- Rate for transportation/carriage are inclusive of loading, unloading, handling and insurance and shall remain firm during the currency of the contract. Any loss or damage to the transformers during the transporta­tion/carriage will be the responsibility of the contractor."

From the above, it appears that it is the responsibility of the contractor to trans­port the defective Transformers and any damage caused during transportation shall be charged from the contractor. Further, it appears that the respondent has lifted the Transformers in his own Truck and no services were taken from any transporter. The contract is only for repair and maintenance of the Transformers but without lifting the Transformers, repair is not possible. Thus, lifting and re­installation of the Transformers is an integral part of the repair, for which a con­tract was entered into between the respondent and UP. Power Corporation Li­mited.

When Transformers have been transported in their own Truck and no transportation charges were paid to any third party, then there is no question for charging the Service Tax as per the Finance Act, which states that 'goods transport agency' means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called.

In the instant case, no consignment note was issued and no services were taken from any third party for transportation of the Transformers. The lift­ing, repair and installation are the composite activities, for which the contract was signed between U.P. Power Corporation and the respondent. Neither transportation services were provided by third party nor transportation charges were being paid by the respondent to anyone. When it is so then no service tax is levia­ble in the instant case as no transportation charges were paid by the respondent.

In the circumstances, we are of the view that transportation of the Transformers is an integral part of the "repair and maintenance". Lifting and re­installation of the Transformers are necessary components of the "repair and maintenance" as long as it is not provided by the third party. Therefore, we find no reason to interfere with the impugned order passed by the Tribunal. The same is hereby sustained along with the reasons mentioned therein.
 
Decision:-Appeal is dismissed.

Comment:- The essence of this case is that GTA service is an integral part of rendering repair services of transformer and so the transportation activity is not leviable to service tax separately. Moreover, the transformers were transported by assessee’s own trucks and no consignment note was also issued. Hence, the transportation activity was not GTA service but was includible in “repair and maintenance services" provided by the assessee.
 

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com