Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *   CBIC issues draft rules for Customs valuation *  Top Headlines: Threshold for Benami deals, green bond investors, and more *  Govt aims 1-hour clearance for goods at all ports *  Exporters Allowed To Use RoDTEP, RoSCTL Scrips To Pay Customs Duty, Transfer Them; Rules Amended *  Millions of labourers to be affected by brick producers’ strike over hike in GST, coal rates *  Inauguration of ‘kendriya GST parisar’ *  Transporter can seek Release of Conveyance alone, not Goods under GST Act: Madras HC *  GST: Quoting of DIN Mandatory for Responding to Notice, Govt Modifies Portal *  Firms can soon file claims for GST credits of ?400 cr *  CBIC issues modalities for filing transitional credit under GST. *  Mumbai: Man creates 36 fake GST firms, arrested for input tax credit fraud of Rs 23 cr *  Report to restructure Commerce Ministry under study; idea is to set up trade promotion body: Goyal *  Firms can soon file claims for GST credits of ?400 cr *  Gambling Alert! Govt May Levy Up To 28% GST; UP, Bengal Back Move *  EPFO backs raising retirement age to ease pressure on pension funds *  India Moving Up Power Scale, Set to Become Third Largest Economy By 2030 *  Airfares Get Expensive: What Changes for Flyers From Today? *  IRCTC Latest News: Passengers to Pay More For Cancelling Confirmed Rail Tickets Soon. *  IBC prevails over Customs Act, says Supreme Court. *  As GST enters sixth year, a time for evaluation and reassessment *  There’s GST on daily essentials as Centre needs money to buy MLAs: Arvind Kejriwal *  Now, GST on cancellation of confirmed train tickets, hotel bookings *  GST kitty for top States could rise 20% in FY23, says Crisil *  French customs officials seize another cargo vessel over Russia sanctions *  TradeLens builds on Asia momentum with Pakistan Customs deal *  Hike tax on tobacco, reduce affordability & increase revenue: Civil society organizations to GST council *  Bihar: ?10 crore tax evasion on tobacco products detected in raids *  Centre failed on GST, COVID; would it be anti-national? Rajan on Infosys row *  Service Tax not Chargeable on Income Tax TDS portion paid by recipient: CESTAT grants relief to TVS *  Foreign portfolio investors make net investment of Rs 7575cr in Sep so far
Subject News *  Run-up to Budget: Monetary threshold for GST offences may rise to Rs 25 cr *   GST (Tax) E-invoice Must For Businesses With Over Rs 5 Crore Annual Turnover *   Both Central GST and excise duty can be imposed on tobacco, rules Karnataka high court *   CBIC Issues Clarification On Extended Timelines For GST Compliance *   CBIC Issues Clarification On Extended Timelines For GST Compliance *  Budget 2023- 9.6 crore gas connections *  GST: Tamil Nadu Issues Instructions for Assessment and Adjudication Proceedings *  GST: CBIC Extends Last Date for filing of ITC *  GST collection in September surpasses Rs 1.4 lakh crore for straight seventh time *  Dollar smuggling case: Customs chargesheet names M Sivasankar as key conspirator. *  Hike in GST rates fuels inflation *  Assam: CBI arrests GST commissioner in Guwahati *  GST fraud worth ?824cr by 15 insurance Cos detected *  India proposes 15% customs duties on 22 items imported from UK *  Decriminalising certain offences under GST on cards *  Surge in GST collections more due to higher inflation: India Ratings *  MNRE Notifies BCD and Hike in GST Rates as ‘Change in Law’ Events But With a Condition | Mercom India *   Solar projects awarded before customs duty change allowed cost pass-through *  Rajasthan High Court Dismisses Writ Petitions Challenging Levy Of GST On Royalty *   GST revenue in September likely at Rs 1.45 lakh crore *  Govt working on decriminalising certain offences under GST, lower compounding charge *  Building an institution like GST Council takes time, trashing is easy: Sitharaman *  GST collections in Sept may touch ?1.5 lakh crore *  KTR asks Centre to withdraw GST on handlooms *  After Gameskraft, More Online Gaming Startups To Receive GST Tax Claims *  Madras HC: AAR Application Filed Under VAT Does Not Survive After GST Enactment *  Threshold for criminal offences under GST law may be raised *  Bengaluru: Gaming company faces biggest GST notice of Rs 21,000 crore *  CBIC clarifies Classification of Cranes for GST, Customs Duty *  Customs seize gold hidden in bicycle in Kerala airport  

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