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2015 (11) TMI 163 - AT - Service TaxDenial of abatement of 75% - GTA service - Notification 32/2004-ST dt. 3.12.2004 - assessees engaged individual truck operator/owner for transport of granite blocks from quarry to the factory and from factory to the port of destination and paid service tax on the GTA by availing Notification 32/2004-ST - Denial on the ground that the assessees not fulfilled the condition of the notification - Held that:- Exemption is not applicable if the service provider has availed input and capital goods credit for providing GTA service and they should not have availed notification 12/2003. We find that in the present case the service providers are the transport operators. On perusal of payment vouchers dt. 25.4.2005, 3.6.2005 and 26.8.2006 issued by the appellants to various individual truck owners, we find there is no document or any consignment note by the assessee. It is pertinent to state that as per GTA rules, the GTA should issue consignment notes and not the individual truck owners. In the present case, since the individual truck operator is not registered with service tax, the question of availing input credit or capital goods credit does not arise. The Board’s circular dt. 27.7.2005 and 23.8.2007 are applicable to consignment agents who issue consignment notes to, transporters and they have to declare in the invoice that they have not availed any credit. In this case, transport operators who rendered GTA service to assessee are not registered with central excise or service tax. Therefore, it is evident that once the service provider is not registered with service tax, the fulfilment of condition of notification No.32/2004 does not arise. - appellant is eligible to pay service tax as a recipient and they are eligible for abatement and the appellants have rightly paid 25% service tax on the freight paid. It is pertinent to state that w.e.f 1.1.2010 both the conditions (i) & (ii) stipulated under the proviso to the said notification were deleted and the abatement is applicable without any conditions. In view of foregoing discussion, we hold that appellants are eligible for the benefit of exemption notification No.32/2004. Therefore, question of demanding differential service tax and imposition of penalty does not arise. - Decided in favour of assessee.
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