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2015 (11) TMI 163 - CESTAT CHENNAI

2015 (11) TMI 163 - CESTAT CHENNAI - 2016 (41) S.T.R. 563 (Tri. - Chennai) - Denial of abatement of 75% - GTA service - Notification 32/2004-ST dt. 3.12.2004 - assessees engaged individual truck operator/owner for transport of granite blocks from quarry to the factory and from factory to the port of destination and paid service tax on the GTA by availing Notification 32/2004-ST - Denial on the ground that the assessees not fulfilled the condition of the notification - Held that:- Exemption is no .....

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should issue consignment notes and not the individual truck owners. In the present case, since the individual truck operator is not registered with service tax, the question of availing input credit or capital goods credit does not arise. The Board’s circular dt. 27.7.2005 and 23.8.2007 are applicable to consignment agents who issue consignment notes to, transporters and they have to declare in the invoice that they have not availed any credit. In this case, transport operators who rendered GTA .....

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the proviso to the said notification were deleted and the abatement is applicable without any conditions. In view of foregoing discussion, we hold that appellants are eligible for the benefit of exemption notification No.32/2004. Therefore, question of demanding differential service tax and imposition of penalty does not arise. - Decided in favour of assessee. - Appeal Nos.ST/205 to 208/2008, Appeal Nos.ST/178 to 180/2010 - FINAL ORDER No.41041-41047/2015 - Dated:- 24-8-2015 - Shri R. Periasami, .....

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sioner (Appeals) orders dt. 30.12.2009. Appeal Nos.205 to 208/2008 2. The appellants are registered with Central Excise as EOU for manufacture and export of polished granite slabs. The appellants have also obtained service tax registration for payment of service tax as recipient of GTA service on the freight paid for transport of granite from quarry to the factory and also from factory to the port of destination. They have paid service tax on 25% of value and claimed abatement of 75% as per noti .....

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pellants preferred appeals before this Tribunal and the Tribunal vide Final order No.1750 to 1753/2009 dt. 12.11.2009 set aside the impugned order and allowed the appeal. Revenue filed C.M.A before High Court against the Tribunal s final order and the Hon ble High Court in their order dt. 26.9.2013 in C.M.A.No.1431 to 1434/2010 set aside the Tribunal s order and remanded the matter back to the Tribunal for fresh consideration in accordance with law on merits. Hence the present appeals by assesse .....

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pearing for the assessee s appeals submits that they have paid service tax on GTA as recipient as per the notification 32/2004 and submits that the transporters are individual truck operators and not a GTA. He submits that being a individual truck operators, they are not registered with service tax and also and not availed any cenvat credit on inputs and capital goods. As per the Finance Minister's Speech, the service tax is levied only on GTA and not on individual truck operators. They paid .....

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ion. He further submits that w.e.f 1.1.2010 the said condition has-been deleted and the abatement is applicable to all persons. He relied on Tribunal s decision in the case of Dai Ichi Karkaria Ltd. Vs CCE Pune - 1996 (81) ELT 676 (Tribunal). He also submits that they being a EOU the service tax paid on GTA was taken as credit and claimed refund under rule 5 of CCR. 5. On the other hand, Ld. A.R reiterates the grounds of appeal filed by Revenue and submits that as per amendment of service tax ru .....

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ency is to be taken for the purpose of availing abatement by the recipient of GTA. He also relied Board s circular dt. 23.8.2007 at para 5.1 wherein specifically it was clarified on the issue of invoice, bills, challans and consignment notes and other documents. He also submits that as per Section 37B order dt. 12.3.2007 at para-4 person who is liable to pay service tax as recipient is entitled to the benefit of Notification No.32/2004 subject to fulfilment of the condition of the notification. .....

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its that Hon'ble High Court in the case of CCE Vs Suibramania Siva Co-op Sugar Mills Ltd. held that definition of GTA service includes any person providing service as truck operator service and the service tax is liable to be paid by the recipient. He relied on the following citations:- (i) Bharathi Soap Works Vs CCE Guntur 2008 (9)STR 80 (T-LB) (ii) UOI Vs Ganesh Rice Mills 1998 (99) ELT 199 (SC) (iii) CCE Salem Vs Suibramania Siva Co-op Sugar Mills Ltd. 2014 (35) STR 500 (Mad.) 6. Heard bo .....

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. Department denied the abatement and demanded differencial dutyon the ground that the assessees not fulfilled the condition of the notification. It is pertinent to see the relevant notification 32/2004 which is reproduced as under :- "Service tax payable on 25% of the gross amount charged by Goods Transport Agency (w.e.f. 1-1-2005) In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is n .....

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ded that this exemption shall not apply in such cases where - (i) the credit of duty paid on inputs or capital goods used for providing such taxable service has been taken under the provisions of the Cenvat Credit Rules, 2004; or (ii) the goods transport agency has availed the benefit under the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503(E), dated the 20th June, 2003]. This notification .....

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by the appellants to various individual truck owners, we find there is no document or any consignment note by the assessee. It is pertinent to state that as per GTA rules, the GTA should issue consignment notes and not the individual truck owners. In the present case, since the individual truck operator is not registered with service tax, the question of availing input credit or capital goods credit does not arise. The Board s circular dt. 27.7.2005 and 23.8.2007 are applicable to consignment ag .....

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