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2017 (4) TMI 947 - AT - Service TaxValuation - freight - outward movement of goods of the bread division - inapplicability of N/N. 34/2004-ST dated 3rd December 2004 - case of Revenue is that each consignment was freighted at a cost below the threshold prescribed therein was not evidenced - Held that: - Taxability is a primary requisite for raising a demand and in the absence of law providing for levy of the tax, a demand cannot be allowed to sustain merely owing to procedural rigours - it is in the fitness of things that coverage u/s 65(105)(zzp) of FA, 1994 needs to be ascertained despite being raised for the first time before first appellate authority and if so, the extent to which the freight is excluded from the purview of tax. As facts pertaining to the legal issue requires to be examined, it would be appropriate for the original authority to undertake this task - matters remanded back to the original authority to consider the plea of the appellant that the goods were transported by individual truck owners - matter on remand.
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