TMI Blog2022 (9) TMI 1340X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 07.07.2009 for Cargo Handling Services . Hence, the amount of Rs.2,22,119/- has been erroneously refunded vide Order-in-Original. After following the due process of law, the Ld.Adjudicating authority vide de novo Order-in-Original dated 03.02.2012 disallowed the refund claim of Rs.2,22,119/-. Against the said de novo order, the Appellant filed Appeal before the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) vide the impugned Order-in-Appeal rejected the Appeal filed by the assessee holding that the refund sanctioned on the invoices issued by M/s. AB Commercial to the tune of Rs.2,22,119/- is not admissible. The facts of the present case are squarely covered by the decision in the case of Rungta Projects Ltd. Vs. CCE ST, Allahabad [ 2017 (9) TMI 791 - CESTAT ALLAHABAD] where it was held that transportation of coal was the essential service provided by the assessee and the activity of loading and unloading of coal was instantly for transportation and therefore service rendered by the assessee did not fall within the definition of Cargo Handling Service . The impugned orders cannot be sustained and is accordingly set aside - appeal allowed - decided i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment vide Order-in-Appeal dated 28.03.2018. 4. The Ld.Advocate, appearing on behalf of the Appellant submitted Written Submissions and a compilation of the relevant provisions and the relied upon case laws and reiterated the grounds of Appeal. 5. The Ld.Advocate, vehemently argued that the services received by the Appellant from AB Commercial was for GTA and not Cargo Handling Service as alleged in the instant proceedings and therefore the refund claim of Rs.2,22,119/- was correctly allowed to the Appellant vide Order-in-Original dated 23.09.2010. It is his submission that if the main object is to transport the goods from one place to another and to accomplish such purpose, if other services are provided by the transporter, then the essential character would be of transportation service and such service would be taxed under the taxable category of GTA Service . He further submits that services provided by AB Commercial was for transportation of goods to Paradeep Port and to accomplish such service, the loading charges were also recovered from the Appellant. In which case, the essential character of services rendered by AB Commercial was of transportation service tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the impugned order the Appellate Authority has traversed beyond the scope of the Show Cause Notice. It is their submission that vide the Show Cause Notice dated 29.03.2016, the Adjudicating authority sought to deny refund of Service Tax by alleging that the services rendered by AB Commercial were Cargo Handling Service and not GTA since Cargo Handling Service is not specified in Notification No.17/2009 and therefore exemption cannot be claimed by the Appellant. The Adjudicating authority has inter alia confirmed the demand on the alleged ground that the Appellant has violated the provisions of Rule 4(7) and Rule 9(2) of the Cenvat Credit Rules 2004 as the invoice issued by AB Commercial does not contain the details of taxable service provided. The said allegation has been raised by the Adjudicating authority for the first time during the entire proceedings. In support of the above submissions they have relied upon the decision of the Hon ble Calcutta High Court in the case of Ganpati India International Pvt.Ltd. Vs. CCE, Bolpur [2014 (35) STR 709 (Cal.)]. The Ld.Advocate made the Bench go through the de novo Order-in-Original dated 03.02.2012 whereby on page 10 in Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19/- has been erroneously refunded vide Order-in-Original. The Appellate authority vide the Order-in-Appeal dated 08.03.2011 remanded the matter to the Adjudicating authority for re-adjudication and to verify whether Service Tax was paid by the Appellant under GTA or otherwise in respect of invoices issued by AB Commercial. Subsequently the matter was re-adjudicated and the Appellant was served with a fresh Show Cause Notice dated 11.08.2011. After following the due process of law, the Ld.Adjudicating authority vide de novo Order-in-Original dated 03.02.2012 disallowed the refund claim of Rs.2,22,119/-. Against the said de novo order, the Appellant filed Appeal before the Ld.Commissioner(Appeals) and the Ld.Commissioner(Appeals) vide the impugned Order-in-Appeal rejected the Appeal filed by the assessee holding that the refund sanctioned on the invoices issued by M/s. AB Commercial to the tune of Rs.2,22,119/- is not admissible. 13. I find that under the Finance Act, 1994, Cargo Handling Service has been defined as under:- (23) cargo handling service means loading, unloading, packing or unpacking of cargo and includes, - (a) cargo handling services provided for freig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 are based on essential character by applying the principle of classification enumerated 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 provided. It may be clarified whether in such cases service provided is to be classified under GTA service. Clarification : Cargo handling service [Section 65(105)(zr)] means lo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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