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2023 (9) TMI 1282 - AT - Service TaxClassification of services - cargo handling services or Goods transport agency services? - bundled services or not - demand computed on the basis of TDS Certificates in form 26AS issued by the Income tax department - Board Circular No. 104/07/2008-S.T. dated 6-8-2008 - extended period of limitation - suppression of facts or not - HELD THAT:- During the period April 2012 to December 2014, the appellant was engaged by M/s. SSTAPL as a subcontractor to provide transportation service to M/s. JSL and for the period January 2015 to March 2017, the Appellant started providing Goods transport agency services directly to M/s. JSL. During both the periods, M/s JSL has paid service tax under GTA service as recipient of service. The contention of the department is that service tax is liable to be paid under 'Cargo handling service' by the Appellant and not by M/s JSL under GTA service. Thus, the Work Orders received by the Appellant from M/s SSTAPL and M/s JSL has to be analysed separately to determine the nature of the service rendered by the Appellant during these periods. After successful completion of the job and necessary certification by M/s. JSL, the Appellant raised invoices on M/s. SSTAPL for “Transportation and Unloading of Coal from Sukinda Railway Siding to JSL, KNIC”. The Appellant did not issue any 'Consignment Note' in the name of the consignee M/s. JSL. After loading of the goods into the Rakes, 'Consignment notes' were issued by M/s SSATPL to M/s. JSL, the consignee. Service tax as applicable was duly discharged under reverse charge by M/s. JSL on the GTA Service. It is evident from the clauses in each of the Work order issued to the Appellant by SSTAPL that the services fall under the category of Goods transportation and not Cargo handling service. However, since the consignment note in the present case has been issued by SSTAPL on JSL and not the Appellant, the said service qualifies as services of transportation falling under the negative list entry – Section 66D(p) “services by way of transportation of goods (i) by road except the services of – (A) a goods transportation agency”. The said service rendered by the Appellant to SSTAPL duly qualifies under the negative list and lies outside the ambit of Service tax. Accordingly, appropriate service tax in this case has been rightly paid by the consignee under GTA service as recipient of service. Hence the demand raised on the Appellant under 'Cargo handling service' during the period April 2012 to December 2014 is not sustainable. The service provided by the Appellant during the period January 2015 to March 2017, directly to M/s. JSL w.e.f. January, 2015, was GTA service and not 'Cargo Handling service'. Accordingly, the Appellant is not liable to pay service tax under the category of 'Cargo handling service' and service tax on the said GTA service has been rightly paid by the recipient M/s. JSL. Hence, the demand confirmed against the Appellant for this period is not sustainable. Extended period of limitation - Suppression of facts or not - HELD THAT:- It is a settled position of law that the authorities subsequently cannot adopt a different view once a view has already been accepted during the audit proceedings. Thus, there is no suppression of fact involved in this case and hence the demand confirmed by invoking extended period of limitation is not sustainable - the demand confirmed in the impugned order is liable to be set aside on the ground of limitation also. The service rendered by the Appellant to M/s SSTAPL as a sub-contractor as well as M/s JSL directly, was transportation of goods service and not cargo handling service - the demand confirmed in the impugned order under 'cargo handling service' set aside on merit as well as on limitation - appeal allowed.
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