Brief Facts of the Case s10

2 OIO No. 44/STC/AHD/ADC(JSN)2012-13BRIEF FACTS OF THE CASEM/s. Food Corporation of India having their District office at Industry House, B/h Natraj Cinema, Ashram Road, Ahmedabad-380009 (hereinafter referred to as “M/s FCI ”or “the said assessee”) is a corporation established under Food Corporations Act,1964. As per Rule 2 (d) (v) of the Service Tax Rules, 1994, the liability to pay the service tax has been transferred to certain categories of service recipients in Goods Transport Agency Service. The said assessee, being a recipient of Goods Transport Agency Service specified under Rule 2(1)(d)(v) of the Service Tax Rules, 1994, are holding Service Tax Registration and they are required to comply with the provisions of the Finance Act, 1994 and the rules framed there under. M/s FCI is accordingly registered as “District Manager Food Corporation of India” with Service tax under the category of “Goods Transport Agency ”, as defined under Section 65 of the Finance Act 1994, as amended, bearing registration No. AHMFO0119AST001.2. On the basis of Intelligence received. It was revealed that in respect of transportation services provided by the contractors with regard to the transportation of the food grain stocks, M/s FCI was paying Service tax on 25% value of the said transportation charges ( upon availing abatement of 75%) after availing the benefit of Notification No. 34/2004-ST dtd. 3.12.2004. However , M/s FCI was paying Service Tax only on the transportation charges and neither they nor other agencies make payment of Service Tax on Handling charges consisting of labour/loading and unloading charges even if the services of transportation as well as handling are provided by the same contractor. 3. In furtherance of inquiry, relevant documents were called for from M/s FCI. The Area Manager, FCI, District office, Ahmedabad vide his letter No. 40/ST/FCI DO,A’BAD/2010-2011 dtd. 19.8.2011 informed that there was no addition of handling charges consisting of labour loading and unloading charges in the transport charges. He further stated that the transport charges and other handling charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc are being governed as per the defined schedule of rates provided in the contract of Handling and Transport contract.3.1 He also enclosed the copies of contract of Handling and Transport contract and Bills of transporters who provided the transport service as well as other handling charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc.4. On scrutiny of the copies of Bills of transporters received from M/s FCI, it was found that majority of them were not legible and were having overwriting of payment details. Hence M/s FCI was requested to provide the data in a given format vide letter dtd. 12.10.2011. The said data was submitted by the Area Manager , District Office, FCI, Ahmedabad vide letter No. Fin/40/ST/FCIDOA’bad/10-11 dtd. 14.3.2012. It has been informed that they have not availed the benefit of Notif No. 34/2004 –ST dtd. 3.12.2004. On going through the data it appeared that FCI had calculated their Service Tax liability only on the basis of transport charge shown in the Bill of transporters and not taken into consideration the charges like loading, unloading, salvaging of foodgrains, providing casual labours etc even though all these services had been provided by the same contractor and charged in a same bill .5. Attention is drawn to the Board’s Circular No. 104/7/2008-S.T., dated 6-8-2008 vide F.No. 137/175/2007-CX.4 wherein it had been clarified that 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 service6. Further, it appeared that as per the tender for Handling and transport contract , the transporters have provided transport services along with other services like pailing/loading, 3 OIO No. 44/STC/AHD/ADC(JSN)2012-13 unloading, stacking, labour etc and have issued bills to M/s FCI wherein these charges have been shown separately in addition to the transport charges shown in the same Bill. However, M/s FCI had calculated the Service Tax on transport charges only and had not taken into account other charges like pailing/loading, unloading, stacking, labour etc. for the purpose of arriving at the taxable value which appear to be ancillary/ intermediate service provided in relation to transportation of goods as per the CBEC Board’s clarification cited above. A work sheet in the form of Annexure-A was prepared on the basis of data pertaining to such ancillary/ intermediate services in relation to transportation of goods provided by m/s FCI for the period 1.10.2006 to 26.2.2010. As the Service Tax on transport of food grains became exempted w.e.f 27.2.2010 vide Notification No.04/2010-Service Tax dtd. 27.2.2010, the taxable value for the year 2009-10 has to be considered upto 26.2.2010. 7. The yearwise summary of the Annexure-A is as under :- Year Taxable value after 75% Total Service Tax abatement payable2006-07 763366 93436 ( 1.10.2006 to 31.3.2007) 2007-08 1422037 1754252008-09 4008010 4908462009-10 ( upto 26.2.2010) 1813142 186754G.TOTAL 80,06,555 9,46,4618. In view of the above, M/s FCI appeared to have provided services under the category of “Transport of goods by Road” wherein the value of such ancillary/ intermediate services in relation to transportation of goods after extending the benefit of Notif No. 33/2004 –ST dtd. 3.12.2004 came to 80,06,555/- and have failed to discharge Service Tax amounting to Rs. 9,46,461/- including Ed. Cess and Sec. and Higher Ed. Cess on such taxable value.9. Section 68 of the Finance Act, 1994 provides that every person providing taxable service to any person shall pay service tax at the specified rates and in such manner and within such period as may be prescribed. Further, Rule 6 of the service tax rule, 1994 stipulates that service tax shall be paid to the credit of the Central Government, by the 5th of the month immediately following the calendar month, in which the payments are received, towards the value of taxable services. FCI have not declared the income on account of services provided by them under the category of “Transport of goods by Road ” and have not discharged any Service Tax on the said services. They have therefore contravened the provisions of the said section as they have failed to make the payment of service tax amounting to Rs 9,46,461/- including Ed. Cess and Sec. and Higher Ed. Cess as explained in foregoing para for the services provided during the period 1.10.2006 to 26.2.2010 the credit of the Government within stipulated time limit. It further appeared that FCI had not taken into account such ancillary/ intermediate services in relation to transportation of goods for the purpose of arriving at the taxable value and discharging their service Tax liability and the same had neither been disclosed by them before the above inquiry nor reflected in the ST-3 returns filed by them from time to time . Thus, it appeared that M/s FCI had made short payment of Service Tax on “ Transport of Goods by Road” service as defined under section 65 (50b) of the Finance Act, 1944 as amended, read with section 65(105) (zzp) of the Finance Act 1994 by suppressing the total taxable value. 4 OIO No. 44/STC/AHD/ADC(JSN)2012-1310. The above act of contravention on the part of M/s FCI appeared to have been committed by way of suppression of facts with an intent to evade payment of service tax and, therefore, the said service tax not paid/short paid was required to be demanded and recovered from them under proviso to Section 73(1) of the Finance Act,1994 by invoking extended period of five years. The act of contravention of the provisions of Section 68 of the Finance Act,1994 read with Rule 6 of Service Tax Rules,1994 appeared to be punishable under the provisions of Section 76 and Section 78 of the Finance Act,1994 as amended from time to time.11. M/s FCI was also liable to pay interest at the appropriate rates for the period from due date of payment of Service Tax till the date of actual payment as per the provisions of Section 75 of the Finance Act, 1994. 12. Therefore, District Manager ,M/s. Food Corporation of India having their District office at Industry House, B/h Natraj Cinema, Ashram Road, Ahmedabad-380009 was called upon to show cause to the Additional Commissioner of Service Tax, having his office 1 ST floor, Central Excise Bhavan, Near Polytechnic , Ambawadi, Ahmedabad-380015, vide Show Cause Notice No. STC/4-111/ADC/O&A/D-II/11-12 dated 10.04.2012 as to why – i the services rendered by M/s FCI on which no service tax has been paid, should not be considered as “taxable service” under the category of “Goods Transport Agency” as defined under Section 65(50b) of the Finance Act 1994, as amended, read with Section 65(105) (zzp) of the Finance Act, 1994 and the value of services amounting to Rs. 80,06,555/- ( after abatement of 75%) received for providing services of “Goods Transport Agency” during the period 1.10.2006 to 26.2.2010 should not be considered as taxable value under Section 67 of the Finance Act, 1994 as shown in Annexure-A to this notice; ii. the Service Tax (including Education Cess and Higher & Secondary Education Cess) amounting to Rs. 9,46,461/- (Rs. Nine Lakhs, forty six thousand four hundred sixty one only) on the value as shown in sr. no. i above on “Goods Transport Agency” service should not be charged and recovered from them under proviso to Section 73(1) of the Finance Act, 1994, as amended as shown in Annexure-A to this notice; iii. interest at the applicable rate should not be charged on the Service Tax amounting to Rs. 9,46,461/- from the due date of payment of service tax to the actual date of payment under the provisions of Section 75 of the Finance Act, 1994, as amended; iv. penalty under the provisions of Section 76 of the Finance Act, 1994, as amended, should not be imposed on them for failure to pay Service Tax, Education Cess and Secondary & Higher Education Cess as mentioned hereinabove within stipulated time;and v. penalty under Section 78 of the Finance Act, 1994, as amended, should not be imposed on them for suppressing the full value of such taxable services and material facts before the department resulting into non-payment of Service Tax, Education Cess and Secondary & Higher Education Cess as mentioned herein above. DEFENCE REPLY 13. M/s FCI filed their written reply dated 28.06.2012 wherein they submitted that they were paying service tax on 25% of the gross amount charged by goods transport agency, from corporation at the rate applicable under service tax act ( Not. No. 32/2004) ; that as per the demand they have already paid and shown in Service Tax return ST3, however Rs. 9,46,461/- had been charged upon them after a lapse of 6 years; that recovery of the same from the party is not possible. 5 OIO No. 44/STC/AHD/ADC(JSN)2012-1314. Previously , before the issue of the SCN, on a query by the Preventive Section, Service Tax, Ahmedabad, M/S FCI submitted vide letter dated 19.08.2011, that there was no addition of handling charges consisting of labour loading and unloading charges in the transport charges. He further stated that the transport charges and other handling charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc are being governed as per the defined schedule of rates provided in the contract of Handling and Transport contract.15. He also enclosed the copies of contract of Handling and Transport contract and Bills of transporters who provided the transport service as well as other handling charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc.16. M/S FCI was granted personal hearing on 28.01.2013. Shri I P Christian, Manager(Accounts) and Shri J R Thakkar, Manager(Accounts) attended the hearing on 28.01.2013 and reiterated the submissions made in their reply dated 28.06.2012 and 19.08.2011, and further stated that they paid the tax on transportation charges.DISCUSSIONS AND FINDINGS 17. I have carefully gone through the show cause notice, the defence reply, the records available and the discussions with the representatives of M/S FCI at the time of personal hearing. 18. The point to be decided in this case is whether handling charges consisting of charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc are to be included in the transport charges incurred by M/s FCI, on foodgrains transported by road and whether service tax has to be paid on such gross amount, which includes these charges as per Rule 2 (d) (v) of the Service Tax Rules, 1994. 19. I find that the service tax is paid by M/s FCI on reverse charge basis on GTA services. They are availing an abatement of 75% and pay service tax on 25% of the Invoice Value of the GTA services, as per Not. No. 32/2004-ST dated 3.12.2004. However, on investigation by the Preventive Section, Service Tax, Ahmedabad, it was revealed that as per the tender for Handling and Transport contract of the assessee, the transporters had provided transport services alongwith other services like pailing/loading, unloading, stacking, labour etc., and had issued Bills to M/s FCI, wherein these charges had been shown separately in addition to the transport charges shown in the same Bill. However, M/s FCI had calculated service tax on transport charges only . Thus an amount of Rs. 80,06,555/- , which was on account of handling charges viz. loading/unloading & salvaging of foodgrains, providing casual labours etc. undertaken by these transporters was not being added in their (Transporter’s) Invoice and consequently there was a short payment of Rs. 9,46,461/- by M/s FCI in view of payments made under reverse-charge mechanism..20. To resolve the matter whether these handling charges are to be included in the Invoices issued by the GTA or not, I find that the Board’s Circular No. 104/7/2008-S.T., dated 6-8-2008 succinctly clarifies on the matter as under : “Issue : GTA provides Service to a person in relation to transportation of goods by road in a goods carriage. The service provided is a single composite service which may include various intermediary and ancillary services such as loading/unloading, packing/unpacking, transshipment, temporary warehousing. For the service provided, GTA issues a consignment note and the invoice issued by the GTA for providing the said service includes the value of intermediary and 6 OIO No. 44/STC/AHD/ADC(JSN)2012-13 ancillary service. In such a case, whether the intermediary or ancillary activities is to be treated as part of GTA service and the abatement should be extended to the charges for such intermediary or ancillary service? Clarification : GTA provides a service in relation to transportation of goods by road which is a single composite service. GTA also issues consignment note. The composite service may include various intermediate and ancillary services provided in relation to the principal service of the road transport of goods. Such intermediate and ancillary services may include services like loading/unloading, packing/unpacking, transshipment, temporary warehousing etc., which are provided in the course of transportation by road. These services are not provided as independent activities but are the means for successful provision of the principal service, namely, the transportation of goods by road. The contention that a single composite service should not be broken into its components and classified as separate services is a well-accepted principle of classification. As clarified earlier vide F.No. 334/4/2006-TRU, dated 28-2-2006 (para 3.2 and 3.3) [2006 (4) S.T.R. C30] and F. No. 334/1/2008-TRU, dated 29-2- 2008 (para 3.2 and 3.3) [2008 (9) S.T.R. C61], a composite service, even if it consists of more 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. (emphasis supplied) 20.1 Thus it is clear that any such charges like the loading and unloading are not independent activities but but are the means for successful provision of the principal service, namely, the transportation of goods by road and are to be included in the Invoice issue by the GTA. 21. I further find that Shri K L Pathar, Area Manager, M/S FCI in their letter No. 40/ST/M/S FCI DO,A’bad/2010-11 dated 19.08.2011 has categorically stated that there was no addition of handling charges consisting of labour loading and unloading charges in the transport charges. He further stated that the transport charges and other handling charges like loading, unloading weighment, salvaging of foodgrains, providing casual labours etc are being governed as per the defined schedule of rates provided in the contract of Handling and Transport contract. 22. Therefore, there is no doubt that handling charges viz. loading/unloading & salvaging of foodgrains, providing casual labours etc. are to be included in the invoices issued by the GTA and thus the differential amount of Rs. 80,06,555/- received for providing services of “Transport of Goods by road”, as defined under Section 65(50b) of the Finance Act, 1994 as amended read with Section 65(105)(zzp) of the Finance Act, 1994, during the period 1.10.2006 to 26.2.2010 is to be considered as taxable value under Section 67 of the Finance Act, 1994, 7 OIO No. 44/STC/AHD/ADC(JSN)2012-13 and accordingly the differential Service Tax amount of Rs. 9,46,461/- is to be recovered from M/s FCI under Section 73 of the Finance Act, 1994.23. As discussed above, the demand has been held to be sustainable on merits. Thus I find that it was the duty of the said service provider/assessee to declare such activities, and receipt towards the same in their ST-3 returns filed by them from time to time. ST-3 returns are prescribed under the statute so that department can form view with regard to the taxability of the services. I find that the said service provider had failed to provide the same to the department. The demand of service tax on the services rendered by the said service provider is found to be sustainable on merits as discussed above. The said service tax is not discharged by them as provided under section 68 of the Finance Act, 1994. Had it not been for the audit team to verify the facts, the same would have remained suppressed. Under the circumstances, I find that they suppressed material facts with intent to evade service tax, and I find that the demand of service tax is also sustainable on limitation. Therefore, I find that the charge of suppression of material facts with intention to evade service tax has been conclusively established herein above. In view of the above, I find that extended period for demand of service tax under the proviso to section 73(1) of the Finance Act, 1994 was rightly invoked and the SCN is sustainable on limitation. Therefore demand of differential Service tax amount of Rs. 9,46,461/-is recoverable from the said service provider along with Interest as provided in proviso to Section 73(1) of the Finance Act, 1994 read with Section 75 of the Act ibid.24. Since the said assessee had not discharged service tax liability on the amount of taxable value on the services mentioned in the foregoing paras and as demanded under the show cause notice and therefore, they have contravened the provisions of Section 67 and 68 of the Finance Act, 1994 and thereby rendered themselves liable to penal action under Sections 76 & 78 of Finance Act 1994.25. As regards the issue of imposition of penalty under Section 76 of the Finance Act, 1994, I observe that penalty under Section 76 and 78 of the Finance Act, 1994 are mutually exclusive w.e.f. 10.05.2008 and once penalty under Section 78 is imposed, no penalty under Section 76 can be imposed in terms of the proviso inserted in Section 78 w.e.f 10.5.2008 in this regard. Therefore, no penalty under Section 76 is imposable for the period from 10.5.2008 onwards. In the case before me, the demand of service tax is for the period from 1.10.2006 to 26.2.2010, therefore, I hold that penalty under Section 76 of the said Act is not imposable on the said service provider for the period from 10.5.2008 onwards. However, for the period from October 2006 to 9.5.2008, as the said assessee have not paid service tax within the stipulated time period as prescribed under Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994, I hold them liable to penalty under Section 76 of the Finance Act, 1994. My 8 OIO No. 44/STC/AHD/ADC(JSN)2012-13 conclusion is also based on various decisions of Hon’ble High Courts & Tribunals as mentioned below ; CCE & ST Vs First Flight Couriers Ltd reported at 2007(8) STR 225 (Kar.)  UOI Vs Aakar Advertising, reported at 2008 (11) STR.5 (Raj.)  UOI Vs Shiv Ratan Advertisers reported at 2008 (12) STR 690 (Raj.)  Shiv Network Vs CCE, Daman reported at 2009 (14) STR 680 (Tri-Ahmd)  CCE, Vapi Vs Ajay Sales Agencies reported at 2009 (13) STR 40 (Tri–Ahmd)  Siddhi Motors Vs CCE, Rajkot reported at 2009 (15) STR 422 (Tri-Ahmd)26. I further observe that the Hon’ble CESTAT in the case of M/s Gujarat Industrial Security Force Society Vs CST, Ahmedabad, vide order No. A/1110/WZB/AHD/2010 dated 05.08.2010, has held that no lenient view can be taken under section 76 of the Finance Act, 1994. The relevant paras are reproduced below;“2. After hearing both the sides, I find that in this case, the assessee was registered more than 6 years back and no explanation has been given by them for delayed filing of return and delayed payment of service tax. Under these circumstances, I am not finding fault in stand taken by the lower authority that penalty is imposable under section 76 and once it is held that penalty is imposable under section 76, the amount fixed as per the provision of section 76 is required to be imposed. Under these circumstances, even though the Ld. Advocate submitted that the appellant is a non profit organization, no lenient view can be taken in view of the provisions of law.3. Accordingly, the appeal is rejected.”26.1 Hon’ble High Court of Gujarat in the case of CCE & Cus. Vs Port Officer, reported at 2010 (19) STR 641 (Guj) has now settled the issue of penalty under Section 76. The relevant para is reproduced below ;“10. A plain reading of Section 76 of the Act indicates that a person who is liable to pay service tax and who has failed to pay such tax is under an obligation to pay, in addition to the tax so payable and interest on such tax, a penalty for such failure. The quantum of penalty has been specified in the provision by laying down the minimum and the maximum limits with a further cap in so far as the maximum limit is concerned. The provision stipulates that the person, who has failed to pay service tax, shall pay, in addition to the tax and interest, a penalty which shall not be less than one hundred rupees per day but which may extend to two hundred rupees for everyday during which the failure continues, subject to the maximum penalty not exceeding the amount of service tax which was not paid. So far as Section 76 of the Act is concerned, it is not possible to read any further discretion, further than the discretion provided by the legislature when legislature has prescribed the minimum and the maximum limits. The discretion vested in the authority is to levy minimum penalty commencing from one hundred rupees per day on default, which is extendable to two hundred rupees per day, subject to a cap of not exceeding the amount of service tax payable. From this discretion it is not possible to read a further discretion being vested in the authority so as to entitle the authority to levy a penalty below the stipulated limit of one hundred rupees per day. The moment one reads such further discretion in the provision it would amount to re-writing the provision which, as per settled canon of interpretation, is not permissible. It is not as if the provision is couched in a manner so as to lead to absurdity if it is read in a plain manner. Nor is it possible to state that the provision does not further the object of the Statute or violates the legislative intent when read as it stands. Hence, Section 76 of the Act as it 9 OIO No. 44/STC/AHD/ADC(JSN)2012-13 stands does not give any discretion to the authority to reduce the penalty below the minimum prescribed.” 26.2 The Hon’ble High Court of Gujarat has further confirmed the above view in the case of CCE Vs S J Mehta & Co., reported at 2011 (21) STR 105 (Guj.) and CCE Vs Bhavani Enterprises reported at 2011 (21) STR 107 (Guj.).27. As regards imposition of penalty under Section 78, I find that as the said assessee had suppressed the facts with intention to evade payment of service tax, penalty under Section 78 of the Finance Act, 1994 is mandatorily imposable as has been held by the Apex court in the case of Dharmendra Textile Mills Ltd-2008 (231) ELT 3 (SC) and Rajasthan Spinning & Weaving Mills Ltd-2009 (238) ELT 3 (SC). Therefore, I hold that penalty is imposable on the said assessee under Section 78 of the Finance Act, 1994. I, therefore, hold that they have rendered themselves liable to penalty under Section 78 of the Finance Act, 1994. My above view gets support from below mentioned case laws;  Shiv Network Vs CCE, Daman reported in 2009 (14) STR 680 (Tri.Ahmd.)  CCE, Vapi Vs Ajay Sales Agencies reported in 2009 (13) STR 40 (Tri. Ahmd.)  Order No. A/754/WZB/AHD/2010 dt. 09.06.2010 / 23.06.2010 in the case of M/s Bajrang Security Services Vs CST, Ahmedabad.  Order No. A/1937/WZB/AHD/2010 dated 08.10.2010 / 20.12.2010 in the case of M/s Dhaval Corporation Vs CST, Ahmedabad.27.1 I further observe that recently hon’ble High Court of Punjab & Haryana, in the case of CCE Vs Haryana Industrial Security Services reported at 2011 (21) STR 210 (P&H), has also upheld the penalty equal to service tax imposed under Section 78 of the Finance Act, 1994. Hon’ble Karnataka High Court has also taken similar view in the case of CCE, Mangalore Vs K Vijaya C Rai reported at 2011 (21) STR 224 (Kar.)28. I also find that penalty under Section 76 ibid is provided for failure to pay service tax whereas penalty under Section 78 ibid is for suppressing value of taxable service. In the instant case, service tax liable to be paid in terms of Section 68 read with Rule 6 of the Service tax Rules, 1994, have not been found paid as well as service tax has not been paid / short paid by suppressing value of taxable service by reason of wilful mis-statement and suppression of facts. Of course these two offences may arise in the course of same transaction, or from the same action of the person concerned. But the incidents of imposition of penalty are distinct and separate and even if the offences are committed in the course of same transaction or arises out of the same act the penalty is imposable for ingredients of both offences, this aspect was also considered by the Hon’ble High Court of Kerala in the case of Assistant Commissioner, C.Ex. Vs Krishna Poduval – 2006 (1) STR 185 (Ker). I also find that the Hon’ble Mumbai Tribunal in the case of Golden Horn Container Services Pvt. Ltd. v/s Commr. of C. Ex., Raipur reported at 2009 (16) S.T.R. 422 (Tri.-Mumbai), has held that Section 76 provides for a penalty who commits default simpliciter in payment of the tax whereas section 78 is a more stringent penal provision, 10 OIO No. 44/STC/AHD/ADC(JSN)2012-13 which provides harsher penalty who commits default with mens rea. Since in this case also, the assessee., has committed default with mens rea, the decision of the tribunal is squarely applicable.29. Further, as regards imposition of simultaneous penalty, I place my reliance on the judgment of Hon’ble High Court of Kerala in the case of Assistant Commissioner of Central Excise v. Krishna Poduval (supra) which is aptly applicable to the present case. I find that the imposition of penalty under sections 76 and 78 of the Act is for non payment of service tax and suppression of value of taxable service respectively which are two distinct and separate offences attracting separate penalties. I find that the said assessee have committed both the offences and therefore penalties under section 76 and 78 of the Finance Act, 1994 are imposable on the said service provider for the period upto 9.5.2008. Therefore, I am of the view that in the facts and circumstances of the case, it is justifiable, if the penalty is imposed under the provisions of Section 76 and 78 of the Finance Act, 1994, separately, following the decisions of Hon’ble Kerala High Court and Mumbai tribunal (supra). My views are also further supported by various decisions of tribunals in the cases of ; a) Shiv Network v/s Commissioner of Central Excise & Customs, Daman reported at 2009 (14) S.T.R. 680 (Tri.-Ahmd.) b) Commissioner of Central Excise, Vapi v/s Ajay Sales Agencies reported at 2009 (13) S.T.R. 40 (Tri.-Ahmd.), and c) Mett Macdonald Ltd. v/s Commissioner of Central Excise, Jaipur reported at 2001 (134) E.L.T. 799 (Tri.-Del.). d) M S Shah & Co., Vs CST, Ahmedabad – Order No. A/1328/ WZB/ Ahd/ 2010 dated 30.06.2010 / 26.08.2010. e) Bajarang Security Services Vs CST, Ahmedabad – Order No. A/745/ WZB/Ahd/2010 dated 09.06.2010 / 23.06.2010. f) CESTAT, Principal Bench, New Delhi in the case of Bajaj Travels Ltd., Vs CCE, Chandigarh – 2009 (16) STR 183 (Tri.Del.)30. In light of the aforesaid discussions and findings, I hold that the differential service tax amount of Rs. 9,46,461/- alongwith interest is liable to be confirmed under Section 73(1) of the Finance Act,1994 read with Section 75 of the Act ibid and they are also liable to penalty under the provisions of Section 76 and 78 of the Finance Act,1994. As they have paid the said amount of service tax and interest leviable thereon, I also appropriate the same against the said liabilities confirmed in this order. 31. Accordingly, I pass the following order:- ORDER 11 OIO No. 44/STC/AHD/ADC(JSN)2012-13 i. I consider the amount of Rs. 80,06,555/- received by M/s FCI, for providing services of “Goods Transport Agency”, as defined under Section 65(50b) of the Finance Act, 1994 as amended read with Section 65(105)(zzp) of the Finance Act, 1994, during the period 1.10.2006 to 26.2.2010 , to be taxable value under Section 67 of the Finance Act, 1994. ii. I confirm the demand of Service Tax amounting to Rs. 9,46,461/- (Rupees Nine Lacs Forty Six Thousand Four Hundred and Sixty One only) on the value shown in (i) above on “Goods Transport Agency” and order to recover the same from them under Section 73(1) of Finance Act, 1994. iii. I direct the assessee to pay the interest as applicable on the amount of their service tax liability for the delay in making the payment under Section 75 of the Finance Act, 1994 on the Service Tax demanded under para (ii) above. iv. I impose a penalty of Rs. 200/- (Rupees two Hundreds Only) per day or at the rate of 2% of the service tax amount per month, whichever is higher, subject to maximum of the outstanding tax amount, from the date on which such tax was due till 09.05.2008 or the actual payment of outstanding tax amount, whichever is earlier, under the provisions of Section 76 of the Finance Act, 1994, as amended, for failure to pay Service Tax within the stipulated period as required under the provisions of Section 68 (1) of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules, 1994, as amended. v. I also impose a penalty of Rs. 9,46,461/- (Rupees Nine Lacs Forty Six Thousand Four Hundred and Sixty One only) upon them under Section 78 of the Finance Act, 1994 for suppressing the value of taxable services provided by them before the Department with intent to evade payment of service tax. If the service tax amount is paid along with appropriate interest as applicable, within 30 days from the date of receipt of this order, then the amount of penalty under Section 78 shall be reduced to 25% of the service tax amount, provided if such penalty is also paid within such period of 30 days.[J S Negi) Additional Commissioner Service Tax : AhmedabadF.No. STC/4-111/O&A/ADC/D-II/11-12 Date : 20 .02.2013By R.P.A.D/Hand DeliveryTo, M/s Food Corporation of India, Industry House, B/h Natraj Cinema, Ashram Road,Ahmedabad-380009Copy to:- 1. The Commissioner, Service tax, Ahmedabad ( Attn. Review Cell). 2. The Deputy Commissioner, Service Tax, Division-II, Ahmedabad 3. The Superintendent, Range-IX, Division-II, Service Tax, Ahmedabad with an extra copy of OIO to be delivered to the assessee and send an acknowledgement to this office. 4. Guard File 12 OIO No. 44/STC/AHD/ADC(JSN)2012-13

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