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2018 (1) TMI 501 - HC - Service TaxClassification of services - Cargo Handling Service or Goods Transport Agency Service? - Circular:B11/1/2002-TRU dated 1.8.2002 - Circular: 186/5/2015-S.T. dated 5th October, 2015 - Negative List - abatement - Held that: - From the nature of the services rendered by the petitioners as emerging from the record, in essence and substance, the contract is a contract for transport of goods from the place of the consignor to the place of the consignee or to the port in South India from where the consignee picks up the goods. The petitioners do not carry on any activity of packing and unpacking of goods - Insofar as loading and unloading of goods is concerned, the consignor loads the goods into the container and the consignee unloads the same. It is only when the container reaches the port that it has to be unloaded and loaded on the ship, which is done by the shipping company or a cargo handling agency, which renders such services to the petitioners who act on behalf of the customers - insofar as the service of loading and unloading at the port and shipping of goods from one port to the other is concerned, the petitioners are the recipients of such service from the shipping line and/or the cargo handling service on behalf of the customers. In the facts of the present case, while the petitioners provide the service of transportation, they do not provide any service of packing which is an essential ingredient of “cargo handling service” when transportation is a component thereof - in terms of the definition of “cargo handling service” as amended with effect from 16.5.2008, transportation was brought within its ambit, but only when transportation was in conjunction with packing (packing being the principal element) that it amounted to “cargo handling service”. In the facts of the present case, when the petitioners satisfy the ingredients of the “goods transport agency” as defined under the Finance Act, there is no question of placing the petitioners under the amorphous category of “cargo handling service” which is no longer defined under that Act - if a service meets with a specific description, such specific description has to be given a preference over a general description - In the present case, when the service provided by the petitioner falls within the specific description of “goods transport agency”, the same has to be given preference over the general description of cargo handling service, which is not defined under the Finance Act after the introduction of the negative list regime. Insofar as the applicability of sub-section (3) of section 66F of the Finance Act is concerned, the same is applicable where taxability of bundled service is involved. The entire SCN is based upon a fallacious premise that even if the service provided by the petitioners is mainly goods transport agency, even if any ancillary service of loading or unloading is provided, the transaction would fall within the ambit of cargo handling service. Petition allowed.
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