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2018 (8) TMI 178

nt but it embodies separate contract for each kind of services that being provided and separate compensation for those services. In view of above, there is no vivisection attempted by the Revenue of composite service as there is no single composite service. The appellant has separately billed for each of these separate services. In view of this the Circular CBEC No. 87/97/service Tax dated 14.07.1997 and No. 186/5/20015 dated 05.10.2015 both relating to single composite service are not relevant - In the instance case the amounts recovered under independent separate clause of the agreement of the rate schedule constitute independent and separate services thus on merits the demand is sustained. - Extended period of Limitation - Held that:- SCN was issued to the appellant on 22.11.2006 on the basisís of inquire initiated by summons. On the basis of same inquire initiated the appellant response in the said Show Cause Notice dated 22.11.2006 and impugned notice dated 05.04.2007 is one on the same. The argument under consideration in both notices was also in the same, under these circumstance invocation of the extend period of limitation cannot be sustain. - The penalty under Sec .....

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ent, other fixed expenses, and loading charges for outward movement received by them from M/s Tata Chemicals Limited, They also stated that against these charges no service tax is payable as the said amount is not received as consideration for rendering C&F service and narrated the reasons as to why the said amount cannot be covered under C&F services. (ii) Godown rent received for use of Godown by them from M/s Tata is not for any C&F services and hence the rent received for Godown cannot be considered as service charges for C&F services as no service connected with clearing and forwarding operation is involved. They also informed that any amount charged for provisions of c&f service only could be included in value of taxable service under the category of C&f service. (iii) Regarding other fixed expenses they informed that these are charged for the expenses incurred by them towards fixed capital reimbursement, VFFS machines, spares, interest on fixed capital investment and operator and helper salary, and are no related to remuneration or commission paid to clearing and forwarding agent by the client. (iv) The loading charges for outward movement is for reco .....

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FS machine for machine for packing of TATA salt. He also stated that they are spending more on the salary of the operator ie, approximately ₹ 41,000/- The salary of the operator is being increased to ₹ 37,400/- in the new agreement. 5.2 Regarding the receipts of Machine Spares, he stated that these charges were fixed from May 2004 at the rate of ₹ 10,000/- per month. He stated that the actual expenditure on the spares of machine used for packing of common salt during rainy season is more and in some seasons it is less. The receipt of machine spares is increased to ₹ 12000/- per month as per the new agreement. 5.3 Regarding the loading charges he stated that these charges are recovered at the rate of ₹ 16.20 Per MT from M/s TATA Chemicals. These charges are for truck loading of the common salt at the time of dispatch of the goods. 5.4 The demand Show Cause Notice sought to include the charges under the heads of storage and warehousing services, cargo handling services and packaging services. 6. Ld. Counsel for the appellant argued that it is not permissible to vivisect one service into its components and demand of duty on such components. He relied on t .....

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ite fixed payment but its depends of each component individually. The billing also was done for each component separately. In this regard, Ld. Counsel has also relied on the decision Hon ble Apex Court in case of Gannon Dunkerley (Supra). In the said decision while holding that the workers contract cannot be vivisected for the purpose of Tax. Hon ble Apex Court clarified as follows. To avoid misconception, it must be stated that the above conclusion has reference to works contracts, which are entire and indivisible, as the contracts of the respondents have been held by the learned Judges of the Court below to be. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at p. 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for work done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell, from the agreement to do work and render service and to impose a tax thereon cannot be .....

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