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TMI Blog2017 (9) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... erest was confirmed against the appellant, holding that the services provided by the appellant for loading, unloading, together with shifting/transportation of household articles to various customers are classifiable under the category of "Cargo Handling Service" as defined under Section 65(23) and 65(105)(zr) of the Finance Act, 1994. Further, the impugned order has also imposed penalties on the appellant under Section 77 and 78 ibid. 2. Brief facts of the case, leading to this appeal, are as under :- 2.1 The appellant is engaged inter alia, in the business of transportation of commercial and household goods. In case of transportation of commercial goods, the appellant receives such goods in packed condition from the customers and transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, based on the intelligence report, the officers of DGCEI, Vadodara searched various offices of the appellant located throughout India and seized various records/data/documents. On further investigation into the matter, show cause proceedings were initiated by the Department, alleging that the services provided by the appellant during the period from 16.05.2008 to 31.03.2011 are classifiable under 'Cargo Handling Service', instead of 'Transportation of Goods by Road Service', as claimed by it. The SCN dated 22.10.2013 was adjudicated vide the impugned order dated 29.01.2016, in confirming the adjudged demand. In interpreting the scope of the activities undertaken by the appellant, the ld. Adjudicating authority has held that though transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 14,10,083/-, which was subsequently paid and appropriated in the impugned order. 4. On the other hand, the ld. D.R. appearing for the Revenue reiterated the findings recorded in the impugned order and further submitted that the reliance placed by the appellant on the CBEC circulars dated 06.08.2008 and 05.10.2015 are misplaced inasmuch as the transportation service is not the main service and only incidental to the main service, which is packing, loading, unloading and unpacking. Thus, he contended that the services provided by the appellant should be classifiable under 'Cargo Handling Service'. 5. Heard both sides and examined the case records. 6. Section 65 (50b) of the Finance Act, 1994 qualifies a person to be a 'Goods Transport A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the classification has to be made on the basis of their essential character. 8. The fact is not under dispute that the appellant is registered with the Service Tax Department under the taxable category of 'Goods Transport Agency service' and issues consignment notes for transportation of goods from one place to another for its customers. Issuance of consignment note by the goods transporter is a mandatory requirement under the Carriage by Road Act, 2007. The contractual relationship between the appellant and its customers are primarily confined to transportation of household and other goods from one place to the other. It is a matter of fact that the customers never approach the appellant only for loading, unloading, packing or unpacking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for transportation of goods by road in a goods carriage and the amount charged for the service provided is inclusive of packing, then the service shall be treated as GTA service and not cargo handling service. 10. Further, under the negative list regime, effective from 01.07.2012, the CBEC vide Circular No.186/5/2015-S.T., dated 05.10.2015 has clarified the subject issue, pursuant to the query raised by the All India Transport Welfare Association (AITWA), by reiterating the clarification furnished earlier vide circular dated 06.08.2008. However, the ld. Adjudicating authority has simply brushed aside the above circulars by placing reliance on the circular dated 20.02.2008 issued by CBEC, which is contextually different than the case in ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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