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2018 (9) TMI 497 - AT - Service TaxGTA Services - It has been the contention of the department that the appellant-assessee has not included the value of loading /unloading, and stacking charges in the service value of GTA service - CBEC circular No. 104/2007-2008 ST dated 6.8.2008 - short payment of tax - time limitation. Held that:- The provisions of Circular No. 104/07/2008-ST dated 6.8.08 are relevant only in cases where the consolidated value of transportation charges is being recovered from the service recipient by the service provider. And the clarification is primarily with regard to whether abatement will be entitled on the full value of such charges i.e. transportation charges plus cargo handling, loading, / unloading, stacking /destacking charges etc. are also included. In this particular case, the contracts for transportation of fertilizers cargo filed by the appellant assessee, with regard to various transport contractor are very categorically having two parts, first, which is primarily for transportation of fertilizers; and second is for loading / unloading and stacking/ de-stacking of fertilizers and separate charges for each activity are indicated. Since the value of both the services have categorically been provided separately, the appellant assessee has discharged his service tax liability under reverse charge mechanism of transportation charges as is the requirement of Service tax law, we do not find any legally tenable ground to demand service tax on the cargo handling charges on which service tax as per the provisions of service tax law is to be discharged by the service provider i.e. various transport contractors - Since in the present case, the value has been indicated separately and there is no charge of the department that the service provider of the cargo handling service like loading /unloading stacking /destacking of fertilizer consignment has not discharged their service tax liability. It is seen that the department has not even tried to prove that there is short payment of service tax. We also find that since there is no charge of non-payment of service tax by the contractors of cargo handling services like loading / unloading etc. in that case they must have paid service tax on the full value of service and if same is added to the transportation charges, the appellant-assessee will be entitled for prescribed abatement and as a result the Department would get less amount of service tax - there is no merit in confirming short payment service tax. Time Limitation - Held that:- Since the appellant assessee is being audited regularly by the Department and all the details have been in the knowledge of the department and the charge of suppression of facts or mis declaration etc. have not been established by the department., Therefore the demand of duty under section 73 (1) under extended time proviso is not sustainable on the ground of limitation in this case - demand is also barred by limitation. Appeal allowed - decided in favor of appellant.
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