1. Revenue is in appeal against order-in-appeal dated 19.2.2009 which set aside the order-in-original dated 29.12.2008 in terms of which Cenvat credit
of Rs.80,618/- was disallowed and ordered to be recovered along with interest and penalty of Rs.80,618/- was also imposed.
2. The primary adjudicating authority had held that the appellant had taken Cenvat credit of service tax paid by it as service recipient under GTA
service with reference to the consolidated bills raised in respect of transportation, loading and unloading charges paid to M/s Hira Industries as
transportation charges, while the service was covered under cargo handling service and therefore service tax was to be paid by service provider and
80 the amount paid by the appellant on the service provided by the service provider cannot be treated as payment of service tax. Thus observing the
credit of Rs.80,618/- was disallowed. The Commissioner (Appeals) observed that the description on the relevant invoices was ""recovery of
transportation, loading and unloading charges"" and cited clarification of CBEC issued vide Circular No.104/07/2008-ST dated 6.8.2008 that in such a
situation the entire service was to be treated as GTA service and not cargo handling service, holding that the said clarification was squarely applicable
to the present case.
3. Revenue has contended that CBEC circular cited by Commissioner (Appeals) was issued in response to the representation of All India Motor
Transport Congress. The essential point in that circular was that this facility was provided to Goods Transport Agencies which issued consignment
notes providing composite service including GTA service as the principal service, while in the present case M/s Hira Industries is not a Goods
Transport Agency and did not issue consignment notes.
4. In the cross objections filed by the respondent it contended that the service was GT A service because that was the essential character thereof
though it did include loading and unloading.
5. We have considered the contentions of both sides. The essential issue in the present case is whether the service for which M/s Hira Industries
were paid fell within the scope of GTA service even though the charges recovered pertained not only to transport of goods but also for loading and
unloading. We find that the Commissioner (Appeals) has taken into account the nature of service to arrive at the classification of service as GTA
service. It cited the clarification issued by CBEC vide Circular No.104/7/2008 -ST dated 6.8.2008 the relevant paras of which are reproduced below:
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 loading, unloading, packing or unpacking of cargo and includes the
service of packing together with transportation of cargo with or without loading, unloading and unpacking. Transportation is not the
essential character of cargo handling service but only incidental to the cargo handling service. Where service is provided by a person who
is registered as GTA service provider and issues consignment note for transportation of goods by road in a goods carriage and the amount
charged for the service provided is inclusive of packing, then the service shall be treated as GTA service and not cargo handling service.
We are of the view that in the given circumstances Commissioner (Appeals) was justified in holding that the said CBEC clarification was squarely
applicable to the facts of the present case also and therefore the impugned service was GTA service and not cargo handling service.
6. In the light of the forgoing analysis, we do not find any such infirmity in the impugned order as to warrant appellate intervention and therefore the
appeal is dismissed.
