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TMI Blog2014 (6) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... products, they engage not only Goods Transport Agencies (GTA) but also private truck owners/operators for transporting their goods in private trucks. Appellants were paying Service Tax on the freight paid by them in respect of both categories from whom they were receiving services viz. GTA and private truck owners/operators. It is the submission of the appellant that they stopped paying the Service Tax in respect of services rendered by individual truck owners/operators from May, 2008 after coming to know that they were not liable to pay. Thereafter, they filed a refund claim for the Service Tax already paid by them amounting to Rs. 9,80,863/- which has been rejected by both the lower authorities. Hence the appeal. 3. The refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther another submission is that no consignment note as contemplated in Rule 4B of Service Tax Rules has been issued by these operators. 8. As regards the first submission, according to sub-section (50b) of Section 65 of Finance Act, 1994, "goods transport agency" means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. As per the definition, it is difficult to conclude that a private truck operator is not covered by the definition. What is required to be seen is whether the person has provided a service in relation to transport of goods by road and issues consignment note or not. The main claim of the appellant seems to emerge from the fact that the word "a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ensure that the recipient of the services who is required to pay Service Tax in accordance with Notification No. 35/2004-S.T. in the capacity of recipient can take the Cenvat credit was if all the details which are required as per Cenvat Credit Rules, 2004 are available and is not denied the benefit of credit on the ground that a proper consignment note has not been issued. The question that arises is just because private truck operator or a GTA violates the provisions of Rule 4B by not issuing a consignment note can the recipient refuse to pay Service Tax. According to the law, recipient of the services has been made liable to pay and there is no dispute on this issue. According to Notification No. 35/2004-S.T., person who pays the freig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that in the case of Bharathi Soap Works, it was the same advocate who was representing the appellant but he has not chosen to mention this decision before me. 11. Another ground on which refund claim has been rejected is on the basis that the appellant should have challenged the assessment and in the absence of any challenge to the assessment, refund claim could not have been filed. While in the case of Customs, an assessment is made by a Customs officer. In the case of Priya Blue Industries Ltd. [2004 (172) E.L.T. 145 (S.C.)], the issue was admissibility of refund without challenging the assessment. In the case of Customs, assessment precedes payment of duty and assessment is made by a Customs officer. Therefore, the question of c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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