2023 (9) TMI 649 - CESTAT AHMEDABAD

Cargo Handling service - Exemption to certain services provided to GTA - Benefit of N/N. 01/2009-ST dated 05.01.2009 denied - appellant have not mentioned the name and date of consignment note in the invoice issued by them for providing manpower supply service to the GTA service provider - period of demand is for October 2007 to March 2009 - demand of service tax on Cargo Handling service - HELD THAT:- The retrospective amendment came into effect only on 19.08.2009, whereby the Finance (No.2) Bill, 2009 was given assent by the President of India.

Before that the exemption notification No. 01/2009 was not available to the assessee, therefore, presuming to comply with the condition of Notification No. 01/2009 cannot be expected from the assessee. Therefore, the appellant have not mentioned the name and date of the consignment note in their invoice issued to their service recipient who is undisputedly GTA service provider. However to extend the benefit of such notification even though the procedural lapse can be ignored, but the fact that the service provided by the appellant to the GTA service provider which has been used in providing a GTA service needs to be established, which can be established not only on the basis of invoice alone which is not bearing the consignment note number but on any other documents details of the service recipient. Therefore, for that purpose, the matter needs to be remanded to the adjudicating authority.

Demand of Rs. 4,34,241/- on cargo handing service - HELD THAT:- The learned Commissioner (Appeals) appreciating the submission of the appellant remanded the matter to reconsider the said demand based upon the fact whether the service was provided prior to its levy or thereafter and the payments received therefore, the record to this fact was not available before him - there is no infirmity in the order of the Commissioner (Appeals) to the extent it relates to the demand of Rs. 4,32,241/- remanding the matter to the adjudicating authority, therefore, this portion of the Commissioner (Appeals) order is upheld.

The matter needs to be remanded for reconsideration of the overall issue. The issue regarding time barring of the demand is also kept open for reconsideration by the adjudicating authority - Appeal disposed off by way of remand.