TMI Blog2018 (9) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... on the full value of such charges i.e. transportation charges plus cargo handling, loading, / unloading, stacking /destacking charges etc. are also included. In this particular case, the contracts for transportation of fertilizers cargo filed by the appellant assessee, with regard to various transport contractor are very categorically having two parts, first, which is primarily for transportation of fertilizers; and second is for loading / unloading and stacking/ de-stacking of fertilizers and separate charges for each activity are indicated. Since the value of both the services have categorically been provided separately, the appellant assessee has discharged his service tax liability under reverse charge mechanism of transportation cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not sustainable on the ground of limitation in this case - demand is also barred by limitation. Appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 50851 of 2015 - ST/A/52871/2018-CU[DB] - Dated:- 8-8-2018 - Mr. C L Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) Shri A K Batra, CA for the Appellants Shri Sanjay Jain, AR for the Respondent ORDER Per: C L Mahar: The brief facts of the matter are that the appellant-assessee is engaged in the manufacture of various kinds of fertilizers. They are also registered with the Service Tax department under the category of Goods Transport Agency service. As recipient of GTA service, the appellant-assessee is discharging their ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It has been the contention of the department that as per the circular No. 104/07/2008 ST dated 6.8.2008 provides that - . 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 so long as, (a) the entire transportation of goods is by road; and (b) the person transporting the goods issues a consignment note, it would be classified as GTA Service . 2. Thus, on the above clarification arguing that the value of impugned services like loading /unloading, staking / de-stacking etc. should have been included in the value of services, discharging the service tax liability on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and un-staking of cargo at the warehouses etc are concerned, these charges are inclusive of service tax and the bidder i.e. the transport contract was supposed to discharge the service tax liability on such charges themselves. It has also been contended by the learned advocate that CBEC vide their clarification on various service tax matters, issued from F No. B 11/1/2002 TRU dated 1.8.2002 has provided that if lump sum amount is charged for both transportation and cargo handling, the service tax will be payable on the entire amount, On the other hand, if the bill indicates the amounts charged separately for cargo handling and transportation on actual basis (verifiable by documentary evidence) in that case, the service tax should be levia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re them and therefore the extended period of time provisions of Section 57 (1) for demanding service tax is not invokable in their case as in their case the elements required for invoking extended time provision are not available. Accordingly, the penalty under section 78 of Service Tax Act, 1994 is also not invokable. 6. We have heard Shri Sanjay Jain, learned DR who has reiterated the findings of the order in original. 7. We have heard both the sides and we are of the view that provisions of Circular No. 104/07/2008-ST dated 6.8.08 are relevant only in cases where the consolidated value of transportation charges is being recovered from the service recipient by the service provider. And the clarification is primarily with regard to w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bill amount charged is separate for cargo handling and other transportation charges, the Service Tax to be paid on actual basis i.e. cargo handling charges are to be taken separately for deciding the Service tax liability. Since in the present case, the value has been indicated separately and there is no charge of the department that the service provider of the cargo handling service like loading /unloading stacking /destacking of fertilizer consignment has not discharged their service tax liability. It is seen that the department has not even tried to prove that there is short payment of service tax. We also find that since there is no charge of non-payment of service tax by the contractors of cargo handling services like loading / unlo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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