2023 (9) TMI 718 - CESTAT NEW DELHI

Liability of Service Tax on GTA service - Reverse Charge - transportation charges paid by the appellant on behalf of the buyers of coal to the Goods Transport Agency - Intermediary services - benefit of N/N. 32/2004-ST dated 03.12.2004 as amended - HELD THAT:- The Tribunal had directed the adjudicating authority to examine the evidence available with the Department as well as the evidence that may be submitted by the appellant, to verify the claim that the service tax on transportation had been paid by the buyers/consignees of the coal. The Tribunal in the remand order has observed that if the service tax for transportation from mines to washery is paid by the buyer of the coal, then there is no liability on the appellant. The impugned order has to be examined through the prism of the remand order.

The Tribunal in its order has very clearly directed the adjudicating authority to consider the evidence available with Revenue and the evidence that may be submitted by the appellant - The Tribunal had directed the adjudicating authority to examine the documents available with Revenue, such ST-3 returns of all these consignees. The authority could have called for the connected invoices/Tax deposit Challans to ascertain payment. The adjudicating authority had to co-relate the same with the evidence that may be submitted by the appellant. It is to be noted that the Tribunal has carefully used the term ‘may’ for the appellant, and the responsibility was placed on Revenue to examine the documents which were available with the Department. The department could have obtained the copy of the relevant ledgers, invoices etc., from the consignees through the jurisdictional Range officers. This has not been done by the adjudicating authority which clearly shows that he has not followed this Tribunal’s remand order in letter and spirit.

The Revenue has failed miserably to lead any evidence despite specific orders by this Tribunal. Secondly, having considered the issue on merits, we are of the firm opinion that the appellant acted as an agent or an intermediary between the seller of coal i.e., SECL and the buyer of the coal - it is also found from the evidence led by the appellant that SECL was the consignor and buyers of the coal were consignees and referring to large number of instances where the incidence of freight was actually borne by the consignees and which has not been disputed by the Revenue, it is the buyers of the coal who are liable to make the payment of service tax on freight amount paid to the transporter for transportation of coal in terms of Rule 2(1)(d) 21(v) of Service Tax Rules, 1994.

The impugned order set aside - appeal allowed.