TMI Blog2014 (3) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... the Notification on the ground that the applicant had not fulfilled the conditions of the Notification. As per the terms and conditions of the Agreement the applicant had arranged the transportation and the applicants are not having any trucks, dumpers, tippers etc. and the applicants arranged the same from various transport agencies. The applicant being service provider had not availed any credit in respect of capital goods credit or inputs credit for providing the taxable service. - demand is confirmed on the ground that the applicants are providing Business Auxiliary Service. The applicants relies upon various terms and conditions of the Agreement entered into with the recipient which prima facie shows the activity undertaken by the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aharashtra State Power Generation Co. Ltd. for transport of coal from mine to railway sidings and loading from siding to wagons. The applicant paid the service tax in respect of GTA service by availing the benefit of Notification No. 32/2004-S.T., and M/s. Maharashtra State Power Generation Co. Ltd. as the recipient of the GTA service is liable to pay service tax. The contention is that they have not availed any input or capital goods credit for providing GTA service. The applicant had not availed the benefit of Notification No. 12/2003 for arranging the transportation by engaging various truck operators. In view of this the demand is not sustainable. 6. In respect of other demands, the contention is that the applicant entered with vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the amount of freight cannot be considered as part of service provided by applicant. 10. During argument, the applicant relied upon the terms and conditions of the contracts entered into with the service recipient. The applicant also submitted that the demand is time barred as the allegation of suppression in the given circumstances cannot be made against the applicant. The applicant is registered with the Revenue and regularly paying service tax. All the agreements which are subject matter of the proceedings were submitted to the Revenue in January 2010. Hence the demand by invoking the extended period of limitation is not sustainable. 11. The learned AR on behalf of the Revenue took us through the various contracts and the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and from tipper to the wagons at railway side and thereafter to arrange the continuous loading to wagons and thereafter transporting the coal to the thermal power station. The Revenue also relied upon the terms and conditions of the agreement. As per the agreement the applicants are responsible for damages or detention of the rake, freight loading etc. The contention is that as the applicant has provided the taxable service from coal mines to the power station which includes the transportation of coal by rail. Hence freight is the part of the consideration amount and the applicants are liable to pay tax on the gross amount received from the service recipient. 14. In respect of time bar aspect, the AR drew our attention to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground that the applicants are providing Business Auxiliary Service. The applicants relies upon various terms and conditions of the Agreement entered into with the recipient which prima facie shows the activity undertaken by the applicant is GTA service. In view of this we find prima facie merits in the contention of the applicant. 18. In respect of the demand of ₹ 38,55,546/- the contention is that the amount had already been paid and the applicants produced copies of ST Returns and the statement showing payment of this amount. Therefore prima facie the applicants have made out a case for total waiver of this amount. 19. In respect of the demand of ₹ 32,09,061/- we find that the demand is confirmed after taking into cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f agreed specification by delivery of coal by rail to thermal power station. The applicants are also responsible for damages on retention of racks, loading, unloading etc. As the Agreement is for transportation of coal from the coal mines to the thermal power station, therefore, prima facie it cannot be said that the freight paid to the railway will not form the gross amount in respect of taxable service provided by the applicant. In view of the terms and conditions of the Agreement, the applicants have not made out a case for total waiver of pre-deposit of this amount. However, taking into the facts and circumstances of the case and the issue of limitation the applicants are directed to deposit 25% of the amount of ₹ 18,45,17,212/- w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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