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TMI Blog2014 (3) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... and Rs. 32,09,061/- are confirmed with interest and penalties were imposed. The demand is made in the show cause notice that the applicant had provided Business Auxiliary Service. 4. The contention of the applicant is that the applicant had provided GTA services and not Business Auxiliary Service. 5. In respect of Rs. 41,23,176/-, though the demand is made in the show cause notice as Business Auxiliary Service, the adjudicating authority while confirming the demand treated the same as GTA. The adjudicating authority however denied the benefit of Notification No. 32/2004 on the ground that the applicant failed to show that the applicant fulfilled the condition of the Notification. The contention is that the applicant had entered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the applicant received the consideration amount from the service recipient and the service recipient deducted the damage charges. As the applicant was not receiving the amount to the extent of the damage charges therefore the confirmation of demand by including the amount of damage charges is not sustainable. 9. In respect of the demand of Rs. 18,45,17,212/- the contention is that the demand is confirmed after including the freight paid to the railways in respect of transportation of coal. The actual freight was reimbursed by the Kamataka Power Corporation Ltd. and the applicant had already paid service tax on other taxable services provided to the Karnataka Power Corporation Ltd. As actual freight is reimbursed by Karnataka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ka Power Corporation Ltd., the applicants are liable to pay damage in respect of loss to the property of service recipient, property of railway and property of coal companies, as the deductions were made on account of damages. Therefore it cannot form part of gross consideration amount received by the applicant in respect of taxable service provided. 13. In respect of freight charges, the contention is that as per the terms and conditions of the agreement entered with M/s. Karnataka Power Corporation, the applicants are responsible for supply of coal of the agreed specification for delivery of coal by railways to thermal power station. As the applicant has to undertake the activity of loading of coal from mines to railway sidings unlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GTA Service and denied the benefit of 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. Prima facie in these circumstances we find merit in the contention of the applicant in this regard. 17. In respect of the demands of Rs. 15,85,954, Rs. 51,535/-, Rs. 5,36,72,025/- and Rs. 2,07,12,191/- we find the dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice recipient as per the terms and conditions of the Agreements. Hence these amounts will form part of the gross amount received by the applicant for the taxable service provided to the service recipient. In view of this prima facie the applicant had not made out a case for waiver of pre- deposit of the amount. The applicants are directed to deposit Rs. 32,09,061/- within eight weeks. 20. In respect of the demand of Rs. 18,45,17,212/- which is confirmed after including the freight paid by the applicant to the railways in respect of transportation of coal from the coal mine to the thermal power station, we have gone through the Agreement of M/s. Karnataka Power Corporation and as per the Agreement the applicants are responsible for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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