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2022 (8) TMI 496 - AT - Service TaxRecovery of Service tax - Goods Transport Agency Service - Business Auxiliary Service - Manpower Recruitment Service or Supply Service - activity undertaken by the appellant in providing trucks for transportation of goods from railway siding in Gorakhpur to different parts of Nepal - extended period of limitation - penalty - HELD THAT:- On going through the sample challans and find that the said challans do contain details like truck number, driver name and particulars of the goods. The said challans do not mention separately the consignor and the consignee. It is submitted that the Nepali Traders engaged these trucks from the appellant and others for transporting their own goods for transportation from Gorakhpur to different places in Nepal. Thus, in the facts of the case, it appears that the consignor and consignees are same. Appellant referred to the speech of Hon’ble Finance Minister on 08.07.2004 stating that there has been no intention of law makers to levy service tax on services provided by individual truck owner operators. It is found that under the circumstances, department’s holding that the challans are consignment notes, is incorrect. The Department was confused where issuing show cause notice. In so far as the ‘loading, unloading charges’ are concerned, the show cause notice considered them receipts for services rendered as ‘Manpower Supply Agency’. The impugned order treats them to be for the ‘Goods Transport Agency Services’. Penalties - HELD THAT:- The department has simply confirmed the service tax liability against the appellant without going into the details of arrangements between the appellant and his clients relying only on the documents like income tax returns, profit and loss account and balance sheet etc. The appellant’s contention on the receipts being within exemption limits, over the years, is acceptable - the demand confirmed is not sustainable. Accordingly, the penalties imposed are not sustainable. The learned Commissioner (Appeals) has analyzed the issues correctly and has recorded correct findings. Even though, he decided the issue in the negative list regime, post 1.7.2012, the argument is valid for earlier period also and the impugned demand covers partly the period after 1.7.2012. Learned Commissioner has correctly evaluated the services rendered by the appellants. The Department has accepted the order. It cannot be said that the order has been accepted on monitory grounds, when an appeal against the earlier order passed is pending before this Bench. The appeal is allowed.
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