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2019 (7) TMI 260 - AT - Service TaxRecovery of Service tax - appellants are registered for providing the services under the category of ‘Authorised Service Station’ - GTA Service - non-payment of service tax - reverse charge mechanism - HELD THAT:- The liability to pay the service tax under reversed charged mechanism arises only when the services are received from the goods transport agency that to when such agency has issued a consignment note - In the present case, admittedly and apparently, there is no consignment note. The liability has been confirmed on the basis of mention of charges being paid by the appellant as freight as per their balance sheet - No question arises for considering as to whether mere payment of freight to a transporter amounts to receiving a goods ‘transport agency service’ when the aforesaid definition clearly specifies that such service has to be received from a transport agency only and not merely from the transporter. The issuance of consignment note is also mandatory for the purpose. Mere payment of freight to a transporter who is otherwise not an agency does not amount to receiving goods transport agency services. Accordingly, the appellant cannot be made liable under reversed charged mechanism to pay the service tax for receiving the transportation services - liability under reversed charged mechanism for receiving the GTA services by the appellant has wrongly been confirmed by the Adjudicating Authority - demand set aside. Renting of immovable property services - HELD THAT:- The period in demand admittedly is with effect from 2005-06 to 2009-10. The Adjudicating Authority below committed no error while dropping this demand for the period prior to year 2007 as this service was brought into the tax net vide a Notification of the year 2007. With respect to the remaining period the demand has been challenged for the Show Cause Notice being barred by time. Though the appellants were liable to pay service tax for rendering the services of ‘Renting of immovable property’ but because of the prevalent confusion, no malafide can be attributed to the appellants for not paying the same during the relevant period. Accordingly, the Department has committed an error while permitting the invokablity of extended period for time for issuance of the Show Cause Notice for the period 2005-06 to 2009-10 on 19th May, 2011 - However, this demand for the period with effect from May, 2009 till 2010 is sustainable as a liability of the appellant. The appellant has already deposit the ₹ 30,628/-, accordingly, order for adjustment for appropriation of the said amount for the said liability for the year 2009-10. Penalty - HELD THAT:- There was no reason for the Department to impose penalty on the appellant. Appeal allowed - decided in favor of appellant.
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