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2019 (11) TMI 304 - AT - Service TaxDemand of service tax - clearing and forwarding agent service - Handling expenses - Misc Expenses - Re-stacking/reconditioning expenses - EDP expenses - Bank charges - CASM expenses - Primary freight - Secondary Freight - Service charges - whether the appellant is liable to pay service tax on various amounts enumerated at Sl No 3 to 11 in the table above on which they had not discharged service tax? - extended period of limitation. Handling expenses - HELD THAT:- Revenue wanted to treat mere loading of sugar in the factory and unloading it into railway wagons as clearing and forwarding agency service. In the present case, handling is done in course of CFA operations - demand to this extent has to be confirmed. Miscellaneous expenses towards electricity, telephone, electrical maintenance etc. of the depots - HELD THAT:- The service rendered by the appellant is only the operation of such godowns. Electricity, electrical maintenance sweeping etc. of the godowns are directly relatable to the maintenance of such premises which belong to M/s HLL. Instead of M/s HLL undertaking these activities, the appellant is doing these jobs and claiming reimbursement from M/s HLL. In our considered view, these cannot form part of the taxable services rendered by the appellant in this factual matrix - demand do not sustain. Restacking, reconditioning expenses - HELD THAT:- These pertain to arrangement and rearrangement of the goods in the depot which lie at the heart of the C&F Agent’s activity and do not pertain to maintenance of the premises belonging to M/s HLL although this amount is paid separately to HLL - this forms part of the assessable value for the CFA services. EDP expenses - HELD THAT:- The computer stationery, cartridges and computer maintenance are used in the godown as is evident from the agreement for the given activities of the appellant as C&F Agent such as generation of invoices - these charges are essentially input expenses towards rendering of the C&F agent services. Therefore the same are includible in the assessable value. Bank charges and CASM expenses - HELD THAT:- It is not clear as to what these charges specifically pertain to from the records. Therefore, we do not find sufficient evidence on record to say that these are input services for rendering of C&F agent services by the appellant. Primary freight secondary freight and service charges - HELD THAT:- The C&F Agent agreement that it does not include transportation of the goods as part of the service to be rendered. It is the case of assessee that they have a separate agreement with M/s HLL for transportation of goods which is not part of the CFA agreement. This can only be considered as Goods Transport Agency service - there is no evidence to the contrary. At any rate, if these are GTA services no service tax can be demanded from the service provider as the liability for paying service tax rests on the service recipient in terms of Section 68(2) of the Finance Act, 1994, read with Rule 2(d) of the Service Tax Rules, 1994 - demand do not sustain. Extended period of limitation - HELD THAT:- It is not in dispute that the assessee has not disclosed all these facts to the department and they have come to light only on investigation/audit/ enquiries by the department. It is true that the assessee had filed service tax returns but these did not reflect the full and true value of the amounts received by them for rendering the services - there is nothing in the show-cause notice to justify the allegation of suppression “knowingly and consciously with an intent to evade” as above. Hence there are no sufficient grounds to invoke extended period of limitation. Penalties - HELD THAT:- During the period, Section 80 was in vogue and hence invoking this provision, the penalties are set aside. The demand on handling expenses, restacking/reconditioning expenses, EDP expenses within the normal period of limitation made in the impugned order are upheld and the remaining demands are set aside - the matter is remanded to the original authority only for the purpose of calculation.
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