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Coastal Container Transporters Association And 2 Versus Union of India And 2

2018 (1) TMI 501 - GUJARAT HIGH COURT

Classification 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 consi .....

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ar 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 thereo .....

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rphous 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 int .....

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Petition allowed. - Civil Application No. 2952 of 2017 In Special Civil Application No. 6679 of 2016 - Dated:- 18-12-2017 - MS. HARSHA DEVANI AND MR. A. S. SUPEHIA, JJ. For The Petitioners : Mr Mihir Joshi, Sr. Advocate With Mr Hardik P Modh, Advocate With Mr Vibhor Chaplot, Advocate For The Respondents : Mr Ankit Shah, Advocate And Mr Nirzar S Desai, Advocate ORAL JUDGMENT (PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Mr. Ankit Shah and Mr. Nirzar Desai, learned senior standing counsel f .....

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on to show cause as to why the services rendered by them should not be classified under the heading Cargo Handling Services and be taxed accordingly. 4. The facts as averred in the memorandum of petition and as emerging from the record are that the first petitioner is a body whose members are, inter alia, goods transport operators and engaged in the business of transportation of goods supplied by the customers. It is the case of the petitioners that the show cause notices issued by the second re .....

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e placed reliance upon circulars dated 6.10.2008 and 5.10.2015 issued by the Central Board of Excise and Customs (hereinafter referred to as the C.B.E.C. ). 5. It is the case of the petitioners that the members of the petitioner No.1 Association undertake the following activities for providing services to various customers: (i) When the order is received from customers, it was a clear understanding between members of Petitioner No.1 and its customers that the Petitioners would merely provide ser .....

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d any margin while recovering money from its customers towards port and shipping line charges; (iv) Upon receipt of an order from customers to transport goods from their place to persons who are mostly located in South India, the Petitioners hire a truck along with empty container for this purpose and send the same vehicle to the place/factory of customers; (v) Consignor undertakes responsibility of loading of goods; (vi) The Petitioners approach shipping lines who undertake responsibility for l .....

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oods issued by the Shipping Lines for coastal transportation, the details of the consignor and consignee are clearly indicated. Consignor authorizes shipping lines or its agent to sign/present/process the Bill of Coastal goods at the Customs House on behalf of them; (x) Shipping lines transport containerized goods from Kandla/Mundra ports to containerized port in South India; (xi) Shipping lines offloads containerized goods at discharge port in South India; (xii) Shipping lines looks after conta .....

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that the petitioners provide trucks along with its container at the factory of the customers. 7. Based upon intelligence gathered by the second respondent that the petitioners had shown gross income in their income tax returns filed under section 194 of the Income Tax Act for the year 2012-13, but filed Nil ST-3 returns, the second respondent visited the office premises of the second petitioner on 11.3.2015 and recorded the statements of its Managing Director Shri Amar D. Kothari from time to ti .....

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t, 1994 (hereinafter referred to as the Act ) and are also contrary to the circulars issued by the C.B.E.C. from time to time, which has given rise to the present petition under Article 226 of the Constitution of India. 8. At the outset, Mr. Ankit Shah, learned senior standing counsel for the respondents No.2 and 3 raised a preliminary objection to the very maintainability of the petition; firstly on the ground that the petition has been filed against show cause notices; and secondly, on the gro .....

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g a classification dispute in the exercise of its writ jurisdiction. Reliance was placed upon the decision of the Supreme Court in the case of Union of India v. Hindustan Dev. Corpn. Ltd., 1998 (100) ELT 14 (SC), for the proposition that the writ jurisdiction is not exercisable at show cause notice stage for investigating facts of classification dispute. Reliance was also placed upon the decision of a Division Bench of this court in the case of Kyori Oremin Ltd. Chief Commissioner of Customs, 20 .....

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estion in the petition concerns classification of goods, even once the Tribunal decides the appeal, be it of the assessee of the department, further appeal would lie to the Supreme Court and not to the High court, which would be an additional ground why the court would not entertain the writ petition against the order of the adjudicating authority. It was further submitted that the petitioners have directly approached this court against a show cause notice and therefore also in the absence of an .....

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h, learned advocate for the petitioners, submitted that the circumstances necessary for invoking the writ jurisdiction of this court are clearly made out and hence this petition under Article 226 of the Constitution of India is maintainable even at the show cause notice stage. It was further submitted that it is not as if in all cases involving a classification dispute a writ petition is not maintainable before the High Court. In support of such submission the learned counsel placed reliance upo .....

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vailable to the assessee. It was submitted that in the facts of the present case, the issue of classification is squarely governed by the circulars issued by the C.B.E.C. and hence, there is no bar against the High Court entertaining the petition. 9.1 Reliance was also placed upon the decision of the Supreme Court in the case of Deputy Commissioner of Central Excise and another v. Sushil & Company, 2016- TIOL-47-SC-ST, wherein the High Court had gone by the contract in question which was ent .....

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egality in entertaining the writ petition when no disputed questions of fact were involved and the legal issue was to be decided on the basis of the facts as admitted by the parties, which were so specifically recorded by the High Court itself. It was submitted that in the facts of the present case also no disputed questions of fact are involved and the legal issue is required to be decided on the basis of admitted facts and hence, this court is not precluded from exercising its jurisdiction in .....

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will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi-judicial proceeding under a sta .....

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the attention of the court to the facts of the case to submit that the main activity of the petitioners is of goods transport agency . Reference was made to the definition of goods transport agency as prevailing prior to the year 2012, as defined under section 65(50)(b) of the Finance Act, which provides that goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. It was submitted that the defini .....

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eady been referred to hereinabove. The attention of the court was drawn to Circular No.B11/1/2002-TRU dated 1st August, 2002 issued by the Central Board of Excise and Customs, to point out that in relation to cargo handling services , the Board has explained that mere transportation of goods is not covered in the category of cargo handling and is, therefore, not liable to service tax. It was pointed out that in terms of the circular, cargo handling services means loading, unloading, packing or u .....

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by any means of transportation, namely, truck, rail, ship or aircraft. It was submitted that insofar as the petitioner association is concerned, its members do not carry out any activity of packing or unpacking and if at all any activity of loading or unloading is undertaken, the same is merely incidental to the main activity of goods transport agency. It was pointed out that in the said circular, it has also been clarified that if the bill indicates the amount charged for cargo handling and tra .....

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ssues consignment note. The composite service may include various intermediate and ancillary services provided in relation to the principal service of the road transport of goods. Such intermediate and ancillary services may include services like loading/unloading, packing/unpacking, transshipment, temporary warehousing etc., which are provided in the course of transportation by road. It was submitted that in view of the above circular, if a common invoice in relation to the composite service is .....

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he previous circulars issued by the C.B.E.C. It was submitted that even after the introduction of the negative list, vide circular No.186/5/2015-S.T. dated 5.10.2015, the Board has clarified that the single composite service need not be broken into its components and considered as constituting separate services, if it is provided as such in the ordinary course of business; thus, a composite service, even if it consists of more than one service, should be treated as a single service based on the .....

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w for combining two services separately invoiced, which is made further clear by the Board by the clarificatory circular dated 6.8.2008. 9.6 It was submitted that the present case, therefore, falls within the exception of being contrary to the circulars issued by the C.B.E.C. and hence, the petitioners are entitled to avail of the remedy under article 226 of the Constitution against the show cause notices. Reliance was placed upon the decision of the Supreme Court in the case of Paper Products L .....

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n of cargo handling service has been done away with and therefore, there is no definition of cargo handling service , whereas the definition of goods transport agency continues. Under the circumstances, it cannot be said that the circular issued by the Board does not apply because it is a clarification in terms of the circular in the new regime. In conclusion, it was urged that the services provided by the petitioners clearly fall within the ambit of goods transport agency and that the impugned .....

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culars issued prior to the amendment in the Finance Act, would not be applicable subsequent to such amendment. It was submitted that the petitioners with a view to evade payment of service tax, have split the whole transactions into three parts, that is, from the place of the consignor to Kandla/Mundra Port by road, from Kandla/Mundra Port in Gujarat to Kochi/Tuticorin Ports in South India by sea route and from Kochi/Tuticorin Ports in South India to the place of the consignee by road. It was su .....

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uth India from where the goods are either handed over to the consignee at the port or are transported to the place of the consignee. 10.1 Reference was made to section 66F of the Finance Act which provides the principles of interpretation of specified descriptions of services or bundled services and more particularly, to sub-section (3) thereof which provides for the manner of determination of the taxability of a bundled service. Clause (b) thereof provides that if various elements of such servi .....

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st liability of service tax. It was submitted that out of the services which are being bundled together by the petitioners, the service tax liability of cargo handling service results in highest liability and therefore, the services of the petitioners are required to be classified under the said head. 10.2 Reference was made to the definition of cargo handling service as it stood prior to its substitution by the Finance Act, 2008 on 10.5.2008, to submit that the earlier definition provided that .....

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by including the service of packing together with transportation of cargo or goods, with or without one or more other services like loading, unloading, packing, unpacking. Thus, transportation was included as an ingredient of cargo handling services. 10.3 It was submitted that once the members of the petitioners undertake the responsibility of delivery of goods from consignor to consignee and more particularly, when they are also providing cargo handling services, may be, with help from other s .....

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he rules and regulations, however, that would not change the nature of the services rendered by the petitioners from cargo handling service to goods transport agent . It was submitted that at this stage when only show cause notices have been issued to two of the petitioners, the petitioners may be asked to respond to the same, and the same shall be considered in accordance with law. However, at this stage, the court may not enter into 15 43 merits of the classification dispute and render a decis .....

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d hence, this court, in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India ought not to enter into the merits of such dispute and the petitioners should be asked to respond to the show cause notices, which shall be adjudicated in accordance with law. 11.1 Reference was made to paragraph 8 of the affidavitin- reply filed on behalf of the first respondent, wherein the business activities of the members of the petitioner association have been set out, to .....

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ervice of transportation by road then the customers would not have given the charges meant for the Shipping Companies to the petitioners. It was submitted that the petitioners have artificially bifurcated the charges into various components to nullify the liability of paying the service tax on the services provided from end to end. It was reiterated that if the petitioner companies had been registered under the cargo handling service , no abatement would be admissible and the whole transaction f .....

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sons who are mostly located in South India, the petitioners hire a truck along with an empty container for this purpose and send the same vehicle to the place/factory of the customer/consignor. The consignor undertakes the responsibility of loading the goods. The goods are then transported to the port at Kandla/Mundra in Gujarat. For onward transport to the concerned port in South India, the petitioners approach the shipping lines which undertake the responsibility of loading the containerised g .....

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d goods to the place of the consignee where the consignee unloads the same or the consignee takes delivery of the containerised goods at the port. It is the case of the petitioners that they provide the service of transportation of goods by road. The petitioners provide trucks along with its container at the factory of the customers. The activity of loading and unloading of goods at loading point and discharge point are undertaken by the consignor or consignee respectively. 13. Since it is the c .....

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non-containerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport and cargo handling service incidental to freight, but does not include handling of export cargo or passenger cargo or mere transportation of goods. Vide Circular:B11/1/2002-TRU dated 1.8.2002 clarifications were issued by the Board in relation of ten new services effective from 16.8.2002. Annexure II to the Circular relates to cargo handling service and to the ex .....

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rovided for freight in special containers or for noncontainerised freight, services provided by a container freight terminal or any other freight terminal, for all modes of transport, and any other service incidental to freight, but does not include handling of export cargo or passenger baggage or mere transportation of cargo. The taxable service, as per sub-clause (zr) of clause (90), is any service provided, to any person, by a cargo handling agency in relation to cargo handling services. 3. T .....

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This is only an illustrative list. There are several other firms that are engaged in the business of cargo handling services. 3.1 The services provided in relation to export cargo and passenger baggage are excluded from tax net. 3.2 Mere transportation of goods is not covered in the category of cargo handling and is therefore not liable to service tax. 3.3 Cargo handling service provided in relation to storage of agricultural produce (scope of the term agricultural produce is given under the sto .....

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ng, the tax will be payable on the entire amount. On the other hand, if the bill indicates the amount charged for cargo handling and transportation separately on actuals basis (verifiable by documentary evidence), then the tax would be leviable only on the cargo handling charges. 14. The expression goods transport agency was brought on the statute book with effect from 1st January, 2005 and reads thus: Goods transport agency means any person who provides service in relation to transport of goods .....

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es of transport, and cargo handling service incidental to freight; and (b) service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking, but does not include, handling of export cargo or passenger baggage or mere transportation of goods. 16. Pursuant to various representations made by the All India Motor Transport Congress to the Government regarding difficulties being faced by goods transport agencies in resp .....

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warehousing. For the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of intermediary and ancillary services. In such a case, whether the intermediary or ancillary activities is to be treated as part of GTA service and the abatement should be extended to the charges for such intermediary or ancillary service? Clarification: GTA provides a service in relation to transportation of goods by road which is a single com .....

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sful provision of the principal service, namely, the transportation of goods by road. The contention that a single composite service should not be broken into its components and classified as separate services is a wellaccepted principle of classification. As clarified earlier vide F.No. 334/4/2006-TRU, dated 28-2-2006 (para 3.2 and 3.3) [2006 (4) S.T.R. C30] and F. No. 334/1/2008-TRU, dated 29-2-2008 (para 3.2 and 3.3) [2008 (9) S.T.R. C61], a composite service, even if it consists of more than .....

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in section 65A. Thus, if any ancillary/ intermediate service is provided in relation to transportation of goods, and the charges, if any, for such services are included in the invoice issued by the GTA, and not by any other person, such service would form part of GTA service and, therefore, the abatement of 75% would be available on it. 4. Issue 2: GTA providing service in relation to transportation of goods by road in a goods carriage also undertakes packing as an integral part of the service p .....

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a person who is registered as GTA service provider and issues consignment note 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. 5. Issue 3: Whether time sensitive transportation of goods by road in a goods carriage by a GTA shall be classified under courier service and not GTA service? Clarification : On this issue, it is clarified that .....

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on of cargo handling service stood deleted. However, a new definition of goods transport agency came to be introduced vide section 65B(26), which reads as under: Goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. 18. On a conjoint reading of the definition of goods transport agency before and after the new regime of negative list services came to be introduced, it is amply clear that even af .....

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f goods by road and issues consignment note, by whatever name called. The service provided is a composite service which may include various ancillary services such as loading/ unloading, packing/unpacking, transshipment, temporary storage etc., which are provided in the course of transportation of goods by road. These ancillary services may be provided by GTA himself or may be sub-contracted by the GTA. In either case, for the service provided, GTA issues a consignment note and the invoice issue .....

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s, a composite service, even if it consists of more than one service, should be treated as a single service based on the main or principal service. While taking a view, both the form and substance of the transaction are to be taken into account. The guiding principle is to identify the essential features of the transaction. The interpretation of specified descriptions of services in such cases shall be based on the principle of interpretation enumerated in section 66F of the Finance Act, 1994. T .....

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pulated time, should be considered as services of goods transport agency in relation to transportation of goods for the purpose of Notification No. 26/2012-S.T., dated 20-6-2012, serial number 7, so long as (a) the entire transportation of goods is by road; and (b) the GTA issues a consignment note, by whatever name called. 20. The facts of the case are required to be examined, in the light of the Circulars issued by the Board and the statutory provisions as prevailing prior to and after 2012 wh .....

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oners which shows that the service tax component is at the rate of 12% on ocean freight. A consignment declaration is issued by the consignor in favour of an agency for processing the bill of coastal goods, etc. 22. 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 pi .....

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e container containing the goods is shipped to the concerned port in South India, where the shipping company unloads it and the goods are thereafter transported to the place of the consignee by the petitioners or the consignee takes the goods at the port itself. Therefore, 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 ser .....

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rt of goods from the place of consignor to the port in Gujarat and from the port in South India to the place of the consignee, if the consignee does not take delivery of goods at the port itself. Insofar as the service rendered by the shipping line is concerned, the shipping line issues invoice in favour of the petitioners, who in turn issue a debit note to the customer without adding any charge in respect of such service. 24. The expression cargo handling service was defined prior to the 2012. .....

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to 16.5.2008, cargo handling service meant only loading, unloading, packing or unpacking of cargo for all modes of transport and cargo handling service incidental to freight whereas with effect from 16.5.2008, for the first time transportation came to be brought within the ambit of cargo handling service, which however was limited to the service of packing together with transportation of cargo or goods, with or without one or more of other services like loading, unloading, unpacking. Thus, insof .....

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d not fall within the ambit of cargo handling service. 25. 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. It is the case of the respondents that the petitioners provide service of cargo handling service because they provide the service of loading and unloading at the ports. Insofar as the definition of ca .....

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ing service . Mere transportation with any of the other services like loading, unloading and unpacking does not fall within the ambit of cargo handling service . Moreover, insofar as the petitioners are concerned, such services are merely ancillary to the main service provided by the petitioners, viz. transport of goods by road. Besides, even the service of loading and unloading is not provided by the petitioners, but by the shipping lines to the petitioners on behalf of the customers in respect .....

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rovide the service of packing together with transportation. Insofar as the period after the negative list regime came into force is concerned, the definition of cargo handling service stands deleted and is no longer on the statute book. The respondents, however, appear to be categorizing such service on the basis of the definition of such service as it stood prior to the introduction of the negative list regime. Therefore, even if cargo handling service is considered in terms of the earlier defi .....

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cy provides a service in relation to transportation of goods by road which is a single composite service and also issues consignment note. The composite service may include various intermediate and ancillary services provided in relation to the principal service of the road transport of goods. Such intermediate and ancillary services may include services like loading/unloading, packing/unpacking, transshipment, temporary warehousing etc., which are provided in the course of transportation by roa .....

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provider issues an invoice in favour of the petitioners and the petitioners issue a debit note in favour of the customer. The service providers from whom the petitioners avail intermediary services on behalf of the customers are mainly the shipping lines which provide the service of unloading and loading at the port in Gujarat, shipping of the cargo to the concerned port in South India and unloading and loading of the goods on the vehicle for transportation to the consignee (if the consignee do .....

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e providers involved. Firstly, the petitioners who provide the service of goods transport agency to the customer and secondly, the shipping line which provides service to the petitioners on behalf of the customer. Pertinently, neither the service provided by the petitioners nor by the shipping line includes any element of packing, which is a necessary ingredient for falling within the ambit of cargo handling service when transportation is one of the elements of such service. Therefore, even if i .....

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te service, even if it consists of more than one service, should be treated as a single service based on the main or principal service and accordingly classified. While taking a view, both the form and substance of the transaction are to be taken into account. The guiding principle is to identify the essential features of the transaction. The method of invoicing does not alter the single composite nature of the service and classification in such cases is based on essential character by applying .....

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are included in the invoice, the goods transport agency would be entitled to 75% abatement on the entire transaction. In the facts of the present case, the principal service provided by the petitioners is of transportation of goods by road and they issue invoice insofar as the component of transportation by road is concerned. If the petitioners had been providing the other services like loading/unloading, packing/unpacking, transshipment, temporary warehousing etc. and included the same in the .....

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s a consignment note, it would be classified as GTA Service . Moreover, the circular has to be read as a whole and the clarification on issue 3 cannot be read to mean that in case of GTA service the entire transportation of goods has to be by road, without taking into consideration the earlier part of the circular which provides for a single composite service wherein transportation of goods by road is the principal activity. 29. On behalf of the respondents the learned senior standing counsel ha .....

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d on its description, the most specific description shall be preferred over a more general description. (3) Subject to the provisions of sub-section (2), the taxability of a bundled service shall be determined in the following manner, namely- (a) if various elements of such service are naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which gives such bundle its essential character; (b) if various elements of such service are not natural .....

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that in view of the provisions of subsection (3) of section 66F of the Finance Act, the taxability of a bundled service is required to be determined in the manner provided there under. It was submitted that under clause (b) of sub-section (3) of section 66F, if various elements of such service are not naturally bundled in the ordinary course of business, it shall be treated as provision of the single service which results in highest liability of service. It was submitted that in the present case .....

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unless otherwise specified, reference to service shall not include reference to a service which is used for providing main service. Sub-section (2) of section 66F, where a service is capable of differential treatment for any purpose based on its description, the most specific description shall be preferred over a more general description. In this regard, on behalf of the petitioners, it has been submitted that under sub-section (2) of section 66F, the most specific description of a service is to .....

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the Act it is amply clear that 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 perio .....

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3) of section 66F of the Finance Act is concerned, the same is applicable where taxability of bundled service is involved. The expression bundled service has been defined under the Explanation to sub-section (3) of section 66F to mean a bundle of provision of various services where an element of provision of one service is combined with an element or elements of provision of any other service of services. In the opinion of this court, the question of bundling services would arise where more than .....

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ered by different service providers cannot be bundled together and that it is only if the same service provider provides different services which are not naturally bundled in the ordinary course of business, that resort can be made to the provision of sub-section (3) of section 66F of the Finance Act for the purpose of considering the taxability of the bundled services. Besides, as discussed hereinabove, no part of the services rendered by the petitioners to the customers, either directly or thr .....

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be made to the impugned show cause notice dated 8.10.2015. The main ground for issuance of the show cause notice is that if the petitioner companies had been registered under the category of cargo handling service , no abatement would have been admissible and the whole transaction from consignor to consignee would be covered under the taxable service. In the light of the above discussion, considering the nature of the services rendered by the petitioners even in terms of the show cause notice, t .....

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etitioners, the essential character of the services rendered by the petitioners, viz., goods transport agency, would not be lost. If all the ancillary activities are attributed to the petitioners, then in view of the circulars dated 6th August, 2008 and 5th October, 2015, by including such services in the invoice the petitioners could have claimed abatement qua the entire transaction, which would result in payment of lesser taxes than those collected by the respondents on account of splitting up .....

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, however, want is to tax the entire transaction in the hands of the petitioners on the ground that the entire transaction amounts to cargo handling service which would fetch a higher rate of tax. At the cost of repetition it is stated that having regard to the definition of cargo handling service as defined prior to the introduction of negative list, no part of the transaction falls within the ambit of cargo handling service. Moreover, the above referred circulars dated 6th August, 2008 (prior .....

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ers, if the entire transaction is considered to be a single composite service, even then, in terms of the circulars such composite service is required to be treated as a single service based on the main and principal service, which in the case of the petitioners is goods transport agency . Under the circumstances, in view of the binding circulars issued by the Central Board of Excise and Customs, the service rendered by the petitioners has to be considered on the basis of the main service provid .....

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oners in the category of cargo handling service , which is clearly contrary to the above referred circulars issued by the C.B.E.C. from time to time and are also contrary to the very basic definition of cargo handling service as it stood prior to 2012. The impugned show cause notices relate to the period prior to 2012 as well as post 2012, both of which periods are covered by the circulars issued by the C.B.E.C. in the context of goods transport agency service . 37. In the impugned show cause no .....

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levy by section 65(23) of the Act and it may be said that loading, unloading, packing or unpacking of cargo and handling of cargo for freight in special containers or noncontainerized freight and service provided by container freight terminal or other freight terminal for all modes of transport are subject matter of taxation under the class cargo handling service . That apart, any activity incidental to freight of cargo is also liable to be taxed under such class. Mode of transport is irrelevant .....

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hem, transportation of containerized cargo to Mundra Port, Gujarat; unloading of containerized cargo at Mundra Port; handling of containerized cargo at Mundra Port including payment of various port charges, loading of containerized cargo in coastal vessel by shipping companies on behalf of them, transportation by sea route, unloading and handling of containerized cargo at Kochi/Tuticorin Ports by shipping companies on behalf of them; transportation of containerized cargo from Kochi/Tuticorin Por .....

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s provided, the transaction would fall within the ambit of cargo handling service. 40. In the show cause notice in clause 9.4.3, it has been stated that M/s Yamuna Shipping is not providing the service of mere transportation so as to make itself eligible to be covered under goods transport agency, but, it is providing cargo handling services prior to 1.7.2012 and after 1.7.2012, it is providing service, the main purpose of which is the delivery of cargo from the place of consignor in Gujarat to .....

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r to consignee and more particularly when the company is providing service, may be, with the help of other service providers, but taking help from other service providers does not change the nature of the service being provided by the aforesaid companies to its clients. Thus, even according to the respondents certain services are not provided by the petitioners directly, but are provided to the customers with the help of other service providers. If certain services are provided by other service .....

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Customs from time to time. Under the circumstances, the petitioners are entitled to invoke the writ jurisdiction of this court. The contention that this petition would not lie against a show cause notice, therefore, does not merit acceptance. Besides, the petition does not involve any disputed question of fact and a legal issue is required to be decided on the basis of such facts and binding circulars issued by the Central Board of Excise and Customs, therefore, it is permissible for this court .....

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ervice and the Supreme Court held that the High Court did not commit any mistake or illegality in entertaining the writ petition when no disputed question of fact were involved and legal issues were to be decided on the basis of facts. The decision of the Supreme Court in Union of India v. Hindustan Dev. Corporation (supra) on which reliance has been placed by the learned counsel for the respondents would not be applicable to the facts of the present case inasmuch as this court is not required t .....

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