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2015 (11) TMI 220

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..... Challan clears that transportation of Bauxite Ore was undertaken by Goods Transport Agency on behalf of assessee who is a sole proprietorship firm - CBEC in Circular No.79/9/2004-ST clears that person making payment towards freight would be liable to pay service tax in case consignor or consignee of goods transported falls in one of category mentioned therein - Assessee does not fall in any such category - Impugned order of first appellate authority is correct - Decided in favour of assessee. - Appeal No. ST/655, 656/10 - - - Dated:- 20-7-2015 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Raju, Member (Technical) For the Petitioner : Shri A.B. Kulgod, Asst. (AR) For the Respondent : Shri Dushyant Purekar, Advocate ORDE .....

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..... rtment is in nature of deposit hence the question of time bar and unjust enrichment does not arise. 6. The learned Counsel appearing for respondent ssessee submits that they filed refund claims on the ground that they had by mistake paid the service tax liability under the category of Goods Transport Agency . It was the case of the respondent assessee that they being sole proprietorship concern are not liable to pay service tax for Goods Transport Agency Service either as consignor or consignee. Learned Counsel would draw our attention to the Notification No.35/2004-ST dated 03.12.2004 which mandates discharge of service tax liability in cases where services were rendered by Goods Transport Agency. He would also submit that subsequentl .....

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..... hority has conclusively held that In this case the goods transport agent was supposed to pay service tax .. Once the tax payer is clearly identified, it is the bounden duty of the department to recover the tax from that entity only. There is no indication in the impugned order as to why no investigation/show cause notice was issued to the goods transport agent. It is also not the case of the department that the goods transport agent has absconded or cannot be identified. The appellant had paid the service tax due to a bonafide belief that they have to pay the same. But, when they realized that they were legally not bound to pay the same, they have applied for refund. It is also quite surprising to note that the department has accepte .....

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..... relied on Since the amount retained by the department is an unauthorized deposit, the question of unjust enrichment also does not arise. The department will be liable for payment of interest also in terms of Hon ble Apex Court s decision in Pratibha Processors vs. UOI reported in 1996 (88) ELT 12 S.C. where it has been held that Interest in tax matters Meaning of Interest is compensatory in character and is imposed on an assessee who has withheld payment of any tax as and when it is due and payable Levy of interest is geared to actual amount of tax withheld and the extent of the delay in paying the tax on the due date, thus essentially it is compensatory and different from penalty, which is penal in character Further, in Sa .....

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..... making payment towards freight would be liable to pay the service tax, in case the consignor or the consignee of the goods transported is one of the following,- (i) Factory registered under or governed by the Factories Act; (ii) Company established by or under the Companies Act; (iii)Corporation established by or under any law; (iv) Society registered under Societies Registration Act or similar law; (v) Co-operative society established by or under any law; (vi) Dealer of excisable goods, registered under the Central Excise Law; or (vii) Any body corporate established, or a partnership firm registered, by or under any law. 7.3It can be seen from the reproduced clarification that a person making paymen .....

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