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/2013-14/1907

Whether transportation of coal including loading into trucks classifiable under cargo handling or GTA service?

Case:-  OM SHIV TRANSPORT VERSUS COMMISSIONER OF CENTRAL EXCISE, ALLAHABAD

Citation:- 2013 (31) S.T.R. 152 (Tri. – Del.)

Brief facts:-The facts of the case are as under:-
 
Since these appeals involve substantially similar facts and invite reference to identical statutory provisions, we consider it appropriate to dispose of these appeals by a common order. The assessee/appellants are aggrieved by adjudication orders passed by the Commissioner of Central Excise, Service Tax, Allahabad on different dates. Assessees are in the business of transportation of coal in tipping trucks from coal stockyard of Northern Coal Fields Ltd. (NCL) including loading of coal into tipping trucks and railway wagons by employing their own pay loaders apart from manual breaking of coal to the stipulated sizes. For the period 1-1-2005 to 30th September, 2006, NCL was assessed and levied service tax, inter­est and penalties on these transactions treating the service provided by the as­sessees and others and received by NCL as the service of transport of goods by road, defined Section 65(105)(zzp) read with Section 65(50b). The adjudication order dated 9-1-2008 in respect of NCL was passed pursuant to the Show Cause Notice dated 20-9-2007 issued to NCL under Section 68(2) of the Finance Act, 1994 (the Act) read with Rule 2(1)(d)(v) of Service Tax Rules, 1994 whereby NCL, the recipient of the service of transport of goods by road, is liable to remit Service Tax. It is stated before Tribunal that the order of assessment (adjudication) dated 9-1- 2008 in respect of NCL treating the service provided by the appellants as the ser­vice of transport of goods by road, has become final.
 
Appellant’s contention:- The ap­pellants contends that these services clearly fall in the category of "transport of goods by road" under Section 65(106)(zzp) as defined under Section 65(50b). Re­liance is placed by the ld. Consultant on the Board Circular dated 6-8-2008 bear­ing reference F. No. 137/175/2007-CX.4. The appel­lant/assessee specifically pleaded before the adjudication authority that trans­portation of coal is done by transport contractors registered under Service Tax Act and service tax under the service category "transport of goods by road" was levied on and remitted by NCL; and Service Tax cannot be charged twice in re­spect of the same service; transaction and value thereof which is already sub­jected to levy and collection of tax. The adjudication authority was also intimated the fact that an adjudication order dated 9-1-2008 was passed against NCL in respect of the same transaction treating the same as the taxable service of "trans­port of goods by road". The Appellant also added that the several adjudication orders do not disclose any analysis either regarding bar of limitation nor any coherent analysis regarding the contention that the service having already been classified/assessed and service tax levied, treating the service as "transport of goods by road" ought not to be assessed and service tax levied under the category "cargo handling services". The adjudication authority (by order dated 12-1-2009 in the case of Om Transport) has recorded a non-sequitor viz, that the Commissioner (adjudication authority in respect of NCL) is an independent authority within his jurisdiction; that the adjudication order dated 9-1-2008 pertaining to NCL is an appealable order; that the assessees before him are located within his jurisdiction and are liable to levy of service tax within his jurisdiction. After recording this irrelevant observation, the adjudica­tion authority proceeded to the analysis, whether the transaction in issue is "cargo handling service" or "transport of goods by road service". It is therefore clear that the adjudication order failed to consider whether the same transaction having already been classified as "transport of goods by road" and service tax on that basis collected from NCL, disables its ju­risdiction to re-classify the same transaction as "cargo handling service", for col­lection of Service Tax over and again.
 
Respondent’s contention:- The Respondent stated, in this regards, place reliance on the case ofOrissa High Court inCoal Carriers v. CCE - 2011 (24) S.T.R. 395 (Orissa). After a detailed analysis of the relevant provisions, Orissa High Court declared that goods become cargo when loaded into a railway wagon/truck/tipper; that the distinction between goods and cargo is evident from the fact that transport of goods is liable to tax under the category "transport of goods by road services" that "cargo handling services" is defined in relation to cargo which clearly indicates that cargo handling ser­vices are distinct from "transport of goods by road". He also further explained that in view of. the decision in Coal Carriers, the contention on behalf of the appellants that the service rendered by them truly and fairly constitutes "transportation of goods by road" cannot be countenanced. Services provided by the appellants clearly constitute "cargo handling service" and the conclusion by the adjudication authority (impugned in these appeals), that the services are "cargo handling services", is impeccable and calls for no interference.
 
Reasoning of Judgment:- After hearing both sides and considering the facts and circumstances, the CESTAT declare that the services provided by the appellants herein to Northern Coal Fields Ltd. under distinct work orders constitute "cargo handling services" as defined in Section 65(105)(zr) and do not constitute "transport of goods by road" service, as defined in Section 65(105(zzp) read with Section 65(50b). Since the impugned adjudication orders have failed to consider whether the proceedings against several ap­pellants here are barred by limitation and no extended period of limitation could be invoked in lieu of the transactions having been noticed by the Revenue qua notices issued to NCL; and failed to analyse and consider the material on record i.e. that service tax was already assessed/recovered from NCL treating the ser­vice/transaction as "transport of goods by road", impugned adjudication orders are quashed and the matters remitted to the adjudication authority, to consider and determine whether the extended period of limitation [under the proviso to Section 73(1) of the Act] could be invoked in the circumstances and whether Ser­vice Tax liability could again be assessed and levied on the ground that the ser­vice provided by the appellants are "cargo handling services" when the same service and the value thereof was assessed as "transport of goods by road" and Service Tax thereon collected from NCL, as the service recipient. Appeals are allowed as indicated above. In the circumstances there shall however be no order as to costs.
­
Decision:- Appeal Allowed by way of remand.

Comment:- The issue of classification of the activity of transportation of coal including the loading of coal into trucks is a matter that is prone to litigation. However, in this case the assessee was provided the benefit to reconsider the issue of extended period of limitation as the appeal has been allowed by way of remand.  
 
 

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