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2017 (2) TMI 382 - CESTAT ALLAHABAD

2017 (2) TMI 382 - CESTAT ALLAHABAD - TMI - Classification of services - services related to godown premises of GPI in relation to handling of Tobacco & Non-tobacco materials and transportation of the same from godown to factory, supply of trained forklift operators at factory and godown, carrying out bright scrap (tobacco leaf) activity including opening of bales, crushing and transferring the bright scrap into bags, weighment and closing of filled bags, etc - whether services classified under .....

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that component of the assessable value on which Service tax was already paid by service recipient. Therefore, we find that the said SCN is unsustainable - appeal allowed - decided in favor of appellant. - ST/54227 & 55160/2014-CU [DB] - ST/A/70100-70101/2017-CU[DB] - Dated:- 5-1-2017 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Nishant Mishra, Advocate, & Shri Sudarshan Singh, Advocate, for Appellant Shri D. K. Deb, Assistant Commissioner (AR), .....

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y Philips India Ltd., C/O International Tobacco Company Ltd. On the scrutiny of record of the appellants it was revealed that appellants were providing services related to godown premises of GPI in relation to handling of Tobacco & Non-tobacco materials and transportation of the same from godown to factory, supply of trained forklift operators at factory and godown, carrying out bright scrap (tobacco leaf) activity including opening of bales, crushing and transferring the bright scrap into b .....

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. It appeared to Revenue that appellant was paying Service tax only on the amount received under the head GPI Labour Work and was not paying Service Tax on the amount received under Transportation Receipt. On being pointed out by Revenue appellant submitted to Revenue that they were paying Service tax on the Manpower Recruitment Agency Service provided to M/s Godfrey Philips India Ltd., C/O International Tobacco Company Ltd. & the Service tax on Transportation Receipt was being paid by Inter .....

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ption the appellant were called upon to show cause as to why Service tax amounting to ₹ 16,89,552/- should not be demanded from them under proviso to Sub-section (1) of Section 73 of Finance Act, 1994. In addition, there was a proposal for interest and penalty. The said demand of Service tax was on the assessable value of ₹ 1,54,18,304/- for the years 2007-08 to 2011-12. The assessable value ₹ 1,54,18,304/- was transportation receipt for the years 2007-08 to 2011-12. The said S .....

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d were covered by them for payment of Service Tax under Manpower Recruitment Agency Service and Service Tax for the same was paid and there was no dispute of the same and that the transportation of raw materials from godown to factory was covered by goods transport agency service and that they had also reported to the department that the due service tax on transportation of goods was paid of service receivers, International Tobacco Company Ltd. The appellant, further, contested the proposed clas .....

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ction issued by CBEC through letter F. No. B11/1/2002 TRU dated 01/08/2002 wherein it was clarified that the activities such as hiring of labours for loading & unloading of goods in their individual capacity would not come under the purview of Service tax as a Cargo Handling Service Agency. The Original Authority did not appreciate the arguments and confirmed the demand and imposed equal penalty. The appellants were issued with another Show Cause Notice for subsequent period which was decide .....

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Appeals) the same arguments as before Original Authority which were not appreciated by ld. Commissioner (Appeals) and both the appeals were rejected. Aggrieved by the said Order-in-Appeal No. GZB-EXCUS-000-24 to 26-2014-15 dated 24/07/2007 appellant is before this Tribunal. 3. The grounds of the appeal include the submission by the appellant that the rates which were agreed upon by the appellant and service receiver were having a common communication but for the separate activities such as Manpo .....

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n separately on actual basis (verifiable by documentary evidence), then the tax would be leviable only on the cargo handling charges. 4. Heard the ld. Counsel for the appellant who has relied on definition of Cargo Handling Service has been defined under Sub-clause (23) of Section 65 of the Chapter V of the Finance Act, 1994 (32 of 1994) and the same reads as under:- Cargo Handling Service means loading, unloading, packing or unpacking of cargo and includes,- a) cargo handling services provided .....

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of the word agency in the definition would imply that the person handling the cargo (goods) should not be the owner of the cargo but should handle the same in a representative capacity as an agent. He has submitted as per Clause (b) of said definition if the transportation together with packaging of the material is undertaken then only it will be classifiable under Cargo Handling Service and further submitted that they were not involved in any packaging together with transportation of cargo nor .....

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