15 July 2019


Customs, Excise and Service Tax Appellate Tribunal

CST, Dehradun Vs. Balaji Action Buildwell



Service Tax

Exemption available to GTA service for transport of 'agricultural produce' cannot cover the transport of cut wood of trees

In instant case, the Respondents are engaged in the manufacture of MDF, particle boards, wooden flooring, etc. They are registered with the Department for paying central excise duty, where applicable. They have availed service of "Goods Transport Agency" (GTA). During the period April, 2011 to March, 2014, they paid service tax of Rs. 85,97,757 on reverse change basis on such GTA service. Contending that such tax was paid erroneously by them and claiming exemption under S. No. 21 of Notification No. 25/12-ST dated 20th June, 2012, as amended for transportation of agricultural produce by road, the Respondents filed claim for refund of the said amount. The Original Authority rejected the claim on the ground that, logs/wood/timber transported by the GTA for the Appellant is not an agricultural produce and as such, the service tax paid by the Appellant on such transportation service is correct and no exemption is available. On appeal, the Commissioner (Appeals) vide the impugned order reversed the decision of the Original Authority and allowed the refund claim. Aggrieved by this, the Revenue filed the present appeal. The only point of dispute is regarding the eligibility of the respondent to claim exemption from service tax liability for transportation of timber/wooden logs, which are used by them as raw materials in their manufacture.

The exemption is claimed under Sl. No. 21 of Notification No. 25/2012, dated 20th June, 2012. The said entry states that, services provided by a 'goods transport agency; by way of transport in a goods carriage of 'agricultural produce' is exempt from service tax. The impugned order examined the scope of the term "agriculture" and "agricultural produce" in terms of Section 65B of Finance Act, 1994. It concluded that, eucalyptus/poplar trees for use as raw material is covered by the definition of 'agricultural produce'. The problem with such interpretation is that it, presumes that the wood cut and transported were all out of agricultural cultivation not from natural grown or pre-existing trees. The impugned order did not record categorical evidence to the effect that, these trees are cultivated/grown by specific effort and intend using human skill and labour, as is the case with the general agricultural cultivation. The claim of the Respondent and the observation in the impugned order are generic and resolution of dispute was not focused on this crucial aspect. Rather more emphasis is given only on "processes" undertaken on wood logs.

The 'trees' cannot be equated straight away to 'plants'. Both the terms have certainly distinct, identifiable connotation. In fact, the reference made by the impugned order to the decisions of the High Court in Kanan Devan Hills Pvt. Ltd. was specific to trees planted and nurtured by manual labor and trees which are not spontaneous production will be included in the scope of agricultural income. It is not established that, all the wood and timber now transported for which GTA service was availed were cultivated wood and timber. Even here, it would appear that, such activity will be more in the realm of forestry, not an agricultural operation per se.

Cutting/logging of trees for timber for further industrial use can more appropriately come under "Forestry Operations". Cultivation relates more to plants, various crops etc. There is a clear distinction between plant/crop and trees. In the absence of categorical evidence recorded to the contrary, it is to be considered that timber now under considerations is wholly or partly out of spontaneously grown trees and not all are product of deliberate cultivation due to human agency or effort. Dealing with the income generated in sale of such timber/wood for income tax purposes the High Court and Apex court held that, income cannot be treated as agricultural income (Mahendralal Choudhari vs. Commissioner of Income Tax). The exemption available to GTA service for transport of 'agricultural produce' cannot cover the transport of cut wood of trees. Accordingly, the impugned order is set aside and the appeal by Revenue is allowed.



Tags : Refund Grant Validity

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