TMI Blog2020 (3) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... es advert to any special treatment accorded to one or more of the several consignments sought to be covered within the taxability as courier agency service ; indeed, it would appear that, in the absence of any evidence other than the statements relied upon in the two show cause notices, the determination in the first adjudication order is founded upon assumptions and presumptions. In addition to time sensitivity , there is another factor, that is no less critical, distinguishing the two taxable services: the inalienable presence of a person accompanying the document, goods or articles. Both the impugned orders are in consensus that there is no person in evidence other than the obvious driver of the goods carriage and, while the later does not consider that to suffice for conformity with the definition, the former deems that to be sufficient. There is an inherent flaw in this logic: the rendering of transportation of goods by road service cannot be bereft of the presence of the driver and would, in circumstances of door-to-door delivery, transform such activity to that of courier agency service even in the ostensible absence of time sensitivity - the distinction between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011-12 was founded on investigations that allegedly was liable as courier agency service taxable under section 65 (105) (f) of Finance Act, 1994 instead of the acknowledged taxability under section 65 (105) (zzp) of Finance Act, 1994. According to the investigation, the appellant had been discharging tax liability under the former head till 31st October 2009 and the subsequent alteration was claimed to be the consequence of circular no. 104/07/2008-ST dated 6th August 2008 of Central Board of Excise Customs. Though both services are, admittedly, taxable, the differential tax arises from the benefit of notification no. 35/2004-ST dated 3rd December 2004 available to providers of transport of goods by road service . 3. Commissioner of Service Tax-I, Mumbai, vide order-in-original no. 70-71/STC-I/SKS/14-15 dated 24th December 2014, upheld the proposal to revise the taxable service but, accepting the plea of interpretational confusion, restricted the recovery to the normal period of limitation, from 1st October 2010 to 31st December 2011, in the first of the two notices and confirmed the entire demand in the second. M/s V Express is in appeal against the demand of ₹ 8,57 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... priate category of provider of service. Among the submissions are those pertaining to the scope for expansion of legislative intent and the meaning of courier service. In our opinion, we do not have to delve into all of these as the legislative intent in taxing two separate, and distinctly mutually exclusive, taxable services must be enforced without let or hindrance. 7. It would appear that the Central Board of Excise Customs was exercised over express cargo service facilities, offered by certain road transporters, claiming the consequences of the peculiar system of levy put in place, owing to special circumstances, for taxing transportation of goods by road service and had been issuing clarifications till June 2012. Following the paradigms shift to the regime of negative list , the facility afforded to the same service was interpreted by executive circulars for determining tax liability of such special offerings. 8. Fundamental to the antipodal stances of the two adjudicating authorities in the two orders impugned before us is the activity which, admittedly, involves door-to-door delivery. In this context, it is necessary for us to examine the two taxable services. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements relied upon in the two show cause notices, the determination in the first adjudication order is founded upon assumptions and presumptions. Such substantial demand of tax from an assessee discharging liability as provider of an ostensibly acceptable taxable service cannot be endorsed on such shaky foundations. 10. In addition to time sensitivity , there is another factor, that is no less critical, distinguishing the two taxable services: the inalienable presence of a person accompanying the document, goods or articles. Both the impugned orders are in consensus that there is no person in evidence other than the obvious driver of the goods carriage and, while the later does not consider that to suffice for conformity with the definition, the former deems that to be sufficient. There is an inherent flaw in this logic: the rendering of transportation of goods by road service cannot be bereft of the presence of the driver and would, in circumstances of door-to-door delivery, transform such activity to that of courier agency service even in the ostensible absence of time sensitivity . In our view, the distinction between the two taxable entries cannot be left to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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