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2023 (12) TMI 379 - AT - Service TaxDemand of service tax - Vague show cause notice - SCN issued without specifying the classification of services - Assessment in terms of Section 72(a) - failure to furnish the return under Section 70 of the Finance Act, 1994 as amended - Activity of transportation of concrete from L&T to Delhi airport project site during the period 2008–09 and 2009–10 using their own vehicle - GTA Service or not. Assessment in terms of Section 72(a) - failure to furnish the return under Section 70 of the Finance Act, 1994 as amended - HELD THAT:- There is no clarity on the actual activity carried out by the appellant. The show cause notice is completely silent on the nature of respective activities so as to fall under any specific ‘service’ as defined under the Finance Act. The authorities while issuing the show cause notice merely proceeded on the footing that the appellant has not submitted the relevant figures and therefore the department is left with no option but to issue the show cause notice on the basis of available facts and record with them. This Tribunal has time and again observed that the officers have ample powers under the statute to make effective enquiry and investigation. In M/S. SHUBHAM ELECTRICALS VERSUS CST & ST, ROHTAK [2015 (6) TMI 786 - CESTAT NEW DELHI], the Tribunal quashed the show cause notice for the simple reason that relevant facts have not been stated while issuing the show cause notice. Similar are the observations by the Ahmedabad Bench of the Tribunal in INDO NIPPON CHEMICALS CO. LTD. VERSUS CCE, VADODARA [2009 (4) TMI 140 - CESTAT AHMEDABAD], observing that law gives sufficient powers to officers to conduct enquiries and investigations to bring out the truth, and without making any efforts, on the basis of non-production of documents, on the basis of assumptions and presumptions, a case cannot be made out against the appellant which is the case here. The department cannot take shelter on account of failure of the appellant to produce and supply the documents, and it was incumbent upon them to have ascertained the actual nature of the services for the purpose of levying the service tax under the respective clause - there are no hesitation in holding tht the show cause notice needs to be quashed being vague. The Principal Bench of this Tribunal in M/S EXPRESS ENGINEERS & SPARES PVT. LTD. VERSUS COMMISSIONER, CENTRAL GOODS & SERVICE TAX, GHAZIABAD AND SH. NARESH KUMAR GUPTA (DIRECTOR) VERSUS COMMISSIONER, CENTRAL TAX, GST & CENTRAL EXCISE, MEERUT [2022 (1) TMI 564 - CESTAT ALLAHABAD], referring to the decision of the Apex Court in BHARAT SANCHAR NIGAM LTD. (BSNL) VERSUS UNION OF INDIA [2006 (3) TMI 1 - SUPREME COURT], that the term “transfer of right to use goods” has neither been defined in the Constitution nor in any of the State VAT Acts or Central Sales Tax Act provided five attributes for a transaction to constitute a transfer of right to use goods. The activity of supplying the RMC by the appellant on which he has paid VAT, considering it to be a sale transaction has been considered earlier by this Tribunal in the case of GMK CONCRETE MIXING PVT. LTD. VERSUS COMMISSIONER OF SERVICE TAX, DELHI [2011 (11) TMI 425 - CESTAT, NEW DELHI], where the Principal Bench held that the appellant was engaged in preparation of Ready Mix Concrete (RMC) and while carrying out such dominant object, other ancillary and incidental activities were also carried out - the appellant is not liable to pay service tax on the supply of RMC to M/s L&T and hence the demand of service tax in that regard is not sustainable. Activity of transportation of concrete from L&T to Delhi airport project site during the period 2008–09 and 2009–10 using their own vehicle - HELD THAT:- The scope of liability of service tax in the category of Goods Transport Agency has been considered by the Tribunal in LAKSHMINARAYANA MINING CO. VERSUS COMMR. OF ST., BANGALORE [2009 (9) TMI 71 - CESTAT, BANGALORE], where the contention of the appellant therein that the levy under the category of GTA was attracted, only when there was a relationship of Agency between the service provider and owner of the goods, carnage or the operators of the goods carriage was upheld in view of the definition of GTA and also the clarification given by the Finance Minister in the Budget Speech note, service tax is chargeable in respect of services received from individual truck owners. The impugned order set aside - the demand of service tax proposed in the show cause notice under commercial or industrial construction services as per section 65 (105) (zzq) defined as per section 65 (25b) and Works Contract Services as per section 65 (105) (zzzza) of the Act nor are they chargeable to service tax under “Supply of Tangible Goods Use of Goods”. Consequently, neither the extended period of limitation is invocable nor the penalty and interest is leviable under the Finance Act. Appeal allowed.
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