Service Tax : Activity of receiving goods, warehousing them, receiving dispatch orders, arranging dispatch, maintaining records of incoming shipments and deliveries, etc. amounts to Clearing and Forwarding Agents Services even if : (a) warehouse, (b) computers and software; and (c) transports are provided/arranged by client
Service Tax : Where amount collected is for various components of services, amount collected cannot be considered as including Service Tax; hence, benefit of cum-duty cannot be extended
■■■
[2014] 48 taxmann.com 233 (Mumbai - CESTAT)
CESTAT, MUMBAI BENCH
Talera Logistics (P.) Ltd.
v.
Commissioner of Central Excise, Pune-III*
S.S. KANG, VICE-PRESIDENT
AND P.K. JAIN, TECHNICAL MEMBER
FINAL ORDER NOS. A/2145-2146/2013-WZB/C-I(CSTB)
APPEAL NOS. ST/98/2006 & ST/71/2008-MUM.
OCTOBER 31, 2013
Section 65(25), read with section 65(104c) of the Finance Act, 1994 - Taxable services - Clearing and Forwarding Agent's Services - Period from October 1999 to April 2006 - Assessee was engaged in providing various services of receipt, storage, management, administration and invoicing, etc. of goods belonging to Ford at warehouse belonging to Ford using computers/software/system provided by Ford - Department demanded service tax under 'Clearing and Forwarding Agents' services -
Assessee argued that their services were classifiable under Business Support Services and not taxable during relevant period - HELD : Assessee was receiving goods from various sources, warehousing goods, receiving orders and based upon orders, goods were being packed for outbound transportation - Facts that : (a) warehouse or place of activity is owned or provided by Ford, (b) computers and softwares have been provided by Ford; and (c) transports are arranged by Ford, will not make any difference to taxability/nature of service - Since service is broadly receiving goods, warehousing them, receiving dispatch orders from Ford, arranging dispatch of goods, maintaining records of incoming shipments and deliveries, etc.; same is classifiable as Clearing and Forwarding Agents Services [Para 4.3] [In favour of revenue]
Section 65A, read with section 65(25) and section 65(104c) of the Finance Act, 1994 - Service - Classification of - Period from October 1999 to April 2006 - Department demanded service tax under Clearing and Forwarding Agent's services - Assessee argued that service was taxable only under Business Support Services from 1-5-2006 and since they were paying service tax under said service, demand could not be raised under Clearing and Forwarding Agent's services for prior period - HELD : Payment of service tax under Business Support services from 1-5-2006 will not make any difference as during period in dispute "Business Support Service" was not in existence in list of taxable services - Further, even after 1-5-2006, classification of activities will have to be made as per section 65A [Para 4.3] [In favour of revenue]
Section 73 of the Finance Act, 1994, read with section 11A of the Central Excise Act, 1944, section 28 of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Competent Officer - Assessee, having office at Pune, was providing services at warehouse/centre located in Chennai - When Pune authorities demanded service tax from assessee, assessee argued that Pune authorities had no jurisdiction and they were paying service tax from 1-5-2006 in Chennai - Pune Department argued that : (a) assessee itself took registration in 2001 under Clearing and Forwarding Agents Service in Pune but did not pay service tax or file returns; (b) when Chennai authorities inquired about payment of service tax in 2001/2002, assessee showed as if they are registered and paying service tax in Pune; (c) Chennai authorities had asked assessee whether service tax had been paid at Pune and therefore, proceedings initiated by Pune authorities were valid - HELD : Chennai authorities were asking assessee to take registration and pay tax but assessee gave impression that registration is taken in office located in Pune and all matters relating to Service Tax are being dealt with in Pune Commissionerate - Therefore, Pune office was controlling Chennai operation and were to pay Service Tax in Pune alone - By taking a separate registration in 2006, position for past period cannot be changed - Hence, impugned proceedings were held in correct jurisdiction [Para 4.4] [In favour of revenue]
Section 73, read with section 78 of the Finance Act, 1994, read with section 11A and 11AC of the Central Excise Act, 1944 and sections 28 and 114A of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation -Where : (a) at first, assessee had not taken any registration; (b) assessee took registration but did not pay Service Tax or file any returns; (c) later, assessee started correspondence disputing leviability of Service Tax, though being liable to service tax, there was a clear cut suppression of activities and wilful intention to evade Service Tax - Hence, extended period was correctly invoked and penalties were leviable [Para 4.5] [In favour of revenue]
Rule 6 of the Service Tax Rules, 1994 - Payment - Service Tax - Assessee argued that demand had been raised based on bills rather than actual receipts - HELD : Assessee admitted that payments in respect of all bills were received by them - There was some delay in receiving some payments but no details were provided by assessee - In any case, delay in receipt will not make any difference in liability except shifting of dates - Hence, assessee's contention was rejected [Para 4.6] [In favour of revenue]
Section 67 of the Finance Act, 1994 - Valuation of taxable services - Cum-tax Benefit - Assessee argued that since it had not charged service tax separately, cum-tax benefit may be granted - HELD : Since amount collected is for various components of services, amount collected cannot be considered as including Service Tax - Hence, benefit of cum-tax cannot be extended as per Section 67(2) [Para 4.7] [In favour of revenue]
Service Tax : Where amount collected is for various components of services, amount collected cannot be considered as including Service Tax; hence, benefit of cum-duty cannot be extended
■■■
[2014] 48 taxmann.com 233 (Mumbai - CESTAT)
CESTAT, MUMBAI BENCH
Talera Logistics (P.) Ltd.
v.
Commissioner of Central Excise, Pune-III*
S.S. KANG, VICE-PRESIDENT
AND P.K. JAIN, TECHNICAL MEMBER
FINAL ORDER NOS. A/2145-2146/2013-WZB/C-I(CSTB)
APPEAL NOS. ST/98/2006 & ST/71/2008-MUM.
OCTOBER 31, 2013
Section 65(25), read with section 65(104c) of the Finance Act, 1994 - Taxable services - Clearing and Forwarding Agent's Services - Period from October 1999 to April 2006 - Assessee was engaged in providing various services of receipt, storage, management, administration and invoicing, etc. of goods belonging to Ford at warehouse belonging to Ford using computers/software/system provided by Ford - Department demanded service tax under 'Clearing and Forwarding Agents' services -
Assessee argued that their services were classifiable under Business Support Services and not taxable during relevant period - HELD : Assessee was receiving goods from various sources, warehousing goods, receiving orders and based upon orders, goods were being packed for outbound transportation - Facts that : (a) warehouse or place of activity is owned or provided by Ford, (b) computers and softwares have been provided by Ford; and (c) transports are arranged by Ford, will not make any difference to taxability/nature of service - Since service is broadly receiving goods, warehousing them, receiving dispatch orders from Ford, arranging dispatch of goods, maintaining records of incoming shipments and deliveries, etc.; same is classifiable as Clearing and Forwarding Agents Services [Para 4.3] [In favour of revenue]
Section 65A, read with section 65(25) and section 65(104c) of the Finance Act, 1994 - Service - Classification of - Period from October 1999 to April 2006 - Department demanded service tax under Clearing and Forwarding Agent's services - Assessee argued that service was taxable only under Business Support Services from 1-5-2006 and since they were paying service tax under said service, demand could not be raised under Clearing and Forwarding Agent's services for prior period - HELD : Payment of service tax under Business Support services from 1-5-2006 will not make any difference as during period in dispute "Business Support Service" was not in existence in list of taxable services - Further, even after 1-5-2006, classification of activities will have to be made as per section 65A [Para 4.3] [In favour of revenue]
Section 73 of the Finance Act, 1994, read with section 11A of the Central Excise Act, 1944, section 28 of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Competent Officer - Assessee, having office at Pune, was providing services at warehouse/centre located in Chennai - When Pune authorities demanded service tax from assessee, assessee argued that Pune authorities had no jurisdiction and they were paying service tax from 1-5-2006 in Chennai - Pune Department argued that : (a) assessee itself took registration in 2001 under Clearing and Forwarding Agents Service in Pune but did not pay service tax or file returns; (b) when Chennai authorities inquired about payment of service tax in 2001/2002, assessee showed as if they are registered and paying service tax in Pune; (c) Chennai authorities had asked assessee whether service tax had been paid at Pune and therefore, proceedings initiated by Pune authorities were valid - HELD : Chennai authorities were asking assessee to take registration and pay tax but assessee gave impression that registration is taken in office located in Pune and all matters relating to Service Tax are being dealt with in Pune Commissionerate - Therefore, Pune office was controlling Chennai operation and were to pay Service Tax in Pune alone - By taking a separate registration in 2006, position for past period cannot be changed - Hence, impugned proceedings were held in correct jurisdiction [Para 4.4] [In favour of revenue]
Section 73, read with section 78 of the Finance Act, 1994, read with section 11A and 11AC of the Central Excise Act, 1944 and sections 28 and 114A of the Customs Act, 1962 - Recovery - Of duty or tax not levied/paid or short-levied/paid or erroneously refunded - Invocation of Extended Period of Limitation -Where : (a) at first, assessee had not taken any registration; (b) assessee took registration but did not pay Service Tax or file any returns; (c) later, assessee started correspondence disputing leviability of Service Tax, though being liable to service tax, there was a clear cut suppression of activities and wilful intention to evade Service Tax - Hence, extended period was correctly invoked and penalties were leviable [Para 4.5] [In favour of revenue]
Rule 6 of the Service Tax Rules, 1994 - Payment - Service Tax - Assessee argued that demand had been raised based on bills rather than actual receipts - HELD : Assessee admitted that payments in respect of all bills were received by them - There was some delay in receiving some payments but no details were provided by assessee - In any case, delay in receipt will not make any difference in liability except shifting of dates - Hence, assessee's contention was rejected [Para 4.6] [In favour of revenue]
Section 67 of the Finance Act, 1994 - Valuation of taxable services - Cum-tax Benefit - Assessee argued that since it had not charged service tax separately, cum-tax benefit may be granted - HELD : Since amount collected is for various components of services, amount collected cannot be considered as including Service Tax - Hence, benefit of cum-tax cannot be extended as per Section 67(2) [Para 4.7] [In favour of revenue]
No comments:
Post a Comment