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2022 (4) TMI 136 - CESTAT BANGALOREWaiver of penalties under Sections 76, 77 and 78 of Finance Act, 1994, which are relating to the period 2005 - Refund of the tax wrongly paid - period of dispute is 01-01-2006 to 28-02-2007 - HELD THAT:- Admittedly, the assessee appellant has only engaged the services of individual truck owners for transporting the iron ore and ore burden from its mine head up to the port and hence he would become the recipient of GTA service. A perusal of paragraph 13 of the Order-in-Original referred to by the learned AR when read conjointly with Rule 4B ibid, it is found that the explanation given to consignment note matches with the contents extracted at paragraph 13 of the Order-in-Original. Definition under Section 65(50b) would also refer to issuing of consignment note, “by whatever name called” and hence if for convenience, the assessee has termed as “pay slips”, that by itself would not result in any other thing other than a consignment note. Secondly, even the definition of GTA as per Section 65(50b) would mean any person, including individuals and hence we are not in agreement with the contentions of the learned advocate in this regard. Insofar as the other contentions of the learned advocate that the work order was in a nature of composite contract for both removal and transportation of iron ore and ore burden at specified rates and hence the same would qualify, as understood by the assessee, as cargo handling service. This contention cannot also be accepted. It is found from the decisions relied upon by the learned advocate that penalties under Sections 76, 77 and 78 are not automatic and are governed by Section 80 ibid. The adjudicating authority has elaborately discussed and appreciated the bona fide belief entertained by the assessee that they were not liable to pay service tax since the trucks used for transportation were owned by the transporter himself. In any case, the adjudicating authority has exercised his discretion by dropping penalties being satisfied that the assessee had made sufficient case for invoking Section 80 ibid. Revenue has not found any mala fide insofar as the plea which provided the assessee in not paying service tax in time and hence we have to conclude that the assessee has proved reasonable cause for its failure which has been duly accepted by the adjudicating authority. Both the appeals are dismissed.
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