TMI Blog2018 (8) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Section 78 is set aside, the penalty under Section 76 is revised to the amount of duty leviable for the period within limitation. Appeal allowed in part. - Appeal No. ST/123/2009-DB - Final Order No. A / 11603 /2018 - Dated:- 1-8-2018 - HON BLE MR. RAMESH NAIR, MEMBER (JUDICIAL) And HON BLE MR. RAJU, MEMBER (TECHNICAL) For the Appellant : Shri. Jigar Shah ( Advocate ) For the Respondent : Ms. Nitina Nagori ( A. R. ) ORDER Per : Raju This appeal has been filed by M/s Deep Chemicals against demand of Service Tax, interest on imposition of penalty. 2. Ld. Counsel for the appellant pointed out that the Show Cause Notice was issued to the appellant on 05.04.2007 against the inquiry with started with their reply dated 28.08.2006. in response to summons received by DGCEI. The demand was confirmed by the original adjudicating authority and first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 recovery of expenses incurred by them for loading charges. The recovery of expenses of loading for outward movement is not a remuneration or commission for C F service and hence cannot be included in the value of taxable services. Revenue sought to demand duty on the expenses recovered under these heads. 4. Ld. Counsel pointed out that the Godown rent is given by M/s Tata as per the separate agreement of Rent on the basis of the area occupied by M/s Deep Chemicals. Currently the Godown rent is given at the rate of ₹ 3.50 per Sq feet. The minimum area occupied currently is 24000 Sq. Feet. Out of this area approximately 300 Sq feet is used for packing of Soda Ash, and the remaining for the packing of common salt. He stated that M/s Deep Chemicals was paying the Godown rent to the original Godown owner which is not the same amount as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the decision of Hon ble Apex Court in case Daelim Industrial Company 2007 (5) STR J99. He also relied on the decision of Tribunal in case Gujarat Chem. Port Terminal Co. Ltd Vs CCE 2008 (9) STR 286 (T) . Ld. Counsel on the relied on the Circular: Trade Notice No.87/97 10/Service Tax/97 of the Madurai2 Commissionerate dated 14-July-1997 and on the Circular No: 334/1/2008-TRU dated 29-Feb-2008 and Circular: 186/2015-S.T.dated 05-Oct-2015. Ld. Counsel relied on the decision of Hon ble Apex Court in the case of Gannon Dunkerley Co.(P) 1958 (4) TMI 42 Supreme Court of India. 7. Ld. Counsel argued that it is not open the Revenue to divide a single service of C F agent into different components and demand Service Tax. He argued that the dominant purpose of the contract needs to be appreciated and service should be classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ansfer 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 questioned, and will stand untouched by the present judgment. In the instance case, though there is a single agreement 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. 10 Ld. Counsel relied on Circular No.334/1/TRU-dated 29.02.2008. He has particularly relied on Para 3.3 which read as follows. 33. Section 65A states the principles for classification of taxable servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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