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2015 (12) TMI 162 - CESTAT NEW DELHI

2015 (12) TMI 162 - CESTAT NEW DELHI - TMI - Demand of service tax - GTA service - Trading and transportation of coal - Held that:- Only for a small portion of demand (Rs. 238511.73) in respect of 7 customers, such confirmation could not be obtained and the Commissioner confirmed that much demand against the respondent which chose not to contest the same as it was a small amount but that cannot be a legal ground to assert that the respondent was liable to pay service tax under GTA service. The o .....

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Goods Transport Agency does not constitute GTA service. We find that the invoices have been issued by M/s Coal Feeders which show names of the customers who purchased coal and to whom coal was consigned. Thus, M/s Coal Feeder became the provider of GTA service and as these invoices clearly mentioned ‘freight to be paid by the consignee’, the freight was rightly paid by the consignee along with service tax as has been confirmed in respect of 62 out of total of 69 consignees. - entire demand raise .....

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Amresh Jain, D.R. For the Respondent : Shri Vivek Sharma, Advocate ORDER Per R.K. Singh : Revenue is in appeal against order in original dated 28.5.2009 in terms of which the Commissioner confirmed service tax demand of ₹ 2,38,512/- with interest as against the demand of ₹ 1,85,04,924/- raised in the show cause notice. 2. The facts of the case are as under: The respondent was engaged in trading and providing services of transportation of coal from the collieries/mines of M/s South Ea .....

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t the service tax has been demanded on the freight expenses of appellants subsidiary firm M/s Coal Feeder Pvt. Ltd. which forms part of profit and loss account of noticees company. Thus for the purpose of tax liability the respondent and M/s Coal Feeder Pvt. Ltd. have been treated as a single entity. The Commissioner also noted that, in case M/s Coal Feeder the Delivery Orders were issued in the name of different buyers of coal and that it was clear that the respondent s subsidiary firm (M/s C .....

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Having taken note of the same, the Commissioner found that in respect of 7 consignees, accounting for the service tax of ₹ 238511.73, such confirmation letters could not be obtained and accordingly the said demand for ₹ 238511.73 was confirmed vide the impugned order. 3. The Revenue in its appeal has contended that: (i) The freight had not been paid by respondent as an agent of buyers of coal and therefore service tax should have been paid by it. (ii) The adjudicating authority has e .....

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ers cannot be said to beissued in terms of Rule 4(b) of the Service Tax Rules, 1994. (iv) The responsibility of discharging service tax on the transportation service cannot be passed on by the respondent to the buyers of coal. (v) Service tax on GTA service has not been discharged by all the buyers of coal. (vi) When the demand has been confirmed against the respondent in respect of such buyers of coal from which certificate of payment of service tax could not be obtained, it shows that the liab .....

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ns F.No. 341/18/2004-TRU (Pt) dated 17.12.2004 clarified that if service tax due on transportation of a consignment has been paid or payable by a person liable to service tax, service tax should not be charged for the same amount from any other buyer to avoid double taxation. (d) The truck owners raised bills for hire charges for their trucks (and not for charging freight) on the respondent because some trucks were hired by it to carry coal and such hiring does not amount to GTA service. The fre .....

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d to the fact that demand confirmed was paltry, it chose not to contest the same. 5. We have considered the contentions of both sides. At the outset, it is pertinent to note that the Commissioner s finding that 62 of 69 recipients of coal confirmed having paid the service tax on the same amount on which the demand has been raised in respect thereof has not been contested by Revenue. Only for a small portion of demand (Rs. 238511.73) in respect of 7 customers, such confirmation could not be obtai .....

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