TMI Blog2023 (12) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... them that they wanted a separate agreement for GTA services and that they would discharge the service tax, the appellant agreed accordingly. The letter issued by M/s Ultra Tech Ltd dated 27.06.2013 establishes that the service tax has been paid on freight charges by M/s Ultra Tech Ltd. However, they are discharging service tax only as service recipient Further it is also brought out that the appellant has collected mark up on the freight charges - Further it is also brought out that the appellant has collected mark up on the freight charges. They have also used their own trucks to provide transportation of goods. From these facts it would require to remand the matter to verify such details and to quantity the demand on such basis - there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HON BLE MRS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) And HON BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) Ms. S. Vishnu Priya, Advocate for the Appellant Ms. O.M. Reena, Additional Commissioner (A.R.) for the Respondent ORDER Order : [Per Ms. Sulekha Beevi C.S. ] Brief facts are that the appellant is engaged in providing taxable services falling under the category of Clearing and Forwarding Agency services. During the verification of accounts for the period from April 2009 to March 2012 it was noticed by the department that they were providing services to M/s Ultra Tech Cements and M/s Zuari Cements. As a clearing and forwarding agent they were undertaking loading of cement bags from railway wagons to truck, tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per Section 65(25) clearing and forwarding agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes consignment agent. 1.2. As per Section 67 (1) of Finance Act, 1994, the value of taxable service is the gross amount charged by the service provider. In respect of services provided by appellant to M/s Ultra Tech Cements Ltd, clearance of cement from wagon, loading it in trucks, transporting them to destination and unloading them is provided by appellant as a clearing and forwarding agent. The entire operation falls within the service of clearing and forwarding service. Thus the appellant ought to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate agreements and informed that they would discharge service tax on the freight charges. On bonafide belief that this was permissible as the freight charges fall under GTA services, the appellant had not included the freight charges for arriving at the taxable value. The appellant had used the facility of other transporters and at times also used their own trucks for transportation of goods. In some cases the appellant has indeed collected more charges than the actual freight. The appellant had not discharged the service tax on freight charges as it falls under GTA services and because M/s ultra Tech had agreed to pay the service tax. There was no intention to evade payment of service tax. The show cause notice issued invoking extended per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Heard both sides. 5. The issues that arises for consideration are :- (i) Whether the demand raised alleging that appellant had to include freight charges in the taxable value for C F service is legal and proper. (ii) Whether the demand raised invoking the extended period is sustainable or not. 6. The facts show that in respect of C F services provided by appellant to M/s Ultra Tech Cement Ltd. the appellant had entered into two separate agreements. One for C F services and the other for providing GTA services. It is asserted by the Ld. Counsel that the appellant is a proprietary concern and when M/s. Ultra Tech Ltd informed them that they wanted a separate agreement for GTA services and that they would discharge the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t had no intention to evade payment of service tax. The issue whether transportation services provided by assesse as a clearing and forwarding services would be part of C F services was debatable and there were several decisions in favour of assessee as well as Revenue. In the case of Medpro Pharma Pvt. Ltd. Vs Commissioner of Central Excise, Chennai 2006(6) TMI 2- CESTAT, New Delhi, it was held that even an isolated activity of freight forwarding is covered under C F operations. In the case of Commissioner of Central Excise, Panchkula Vs M/s Kulcip Medicines (P) Ltd 2009 (2) TMI 89 Punjab Haryana High Court, while interpreting the definition of C F service, it was held that the levy of tax would not be attracted if the clearing ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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