TMI Blog2015 (12) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... r, AC (DR) ORDER Per Anil Choudhary The Appellant, M/s Seksaria Biswan Sugar Factory Ltd., is in Appeal against Order-in-Appeal No.75-ST/LKO/2009 dated 18.03.2009 passed by Commissioner of Central Excise (Appeals), Lucknow, by which the Appellants, who are the receiver of the goods under Goods Transport Operator (GTO) services, have been fastened with the liability of service tax being receiver of services. 2.1 Before entering into the facts, ld.Counsel brings to the notice, the legal provisions in respect of GTO services. The tax was imposed w.e.f.05.11.1997 vide Notification Nos, 42/97-ST 43/97-ST both dated 05.11.1997 read with Rule 2 (c) (d) of Service Tax Rules, 1994. These rules were inserted by the aforementioned Notifications. Due to agitation of GTO, by the Notification No.49/98-ST dt.02.06.1998, they were exempted from payment of service tax. Thereafter, the Revenue sought to impose service tax on the person, who pays or is liable to pay freight either himself or through his agent for the transportation of goods by road. By Notification No.43/97-ST dated 05.11.1997; the term person defined is a factory, company or corporation etc. Thereafter, levy in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (1A) enables to be done is that with regard to the assesses or the persons who are responsible for collecting the service tax, the individual or the officer concerned can be identified and it is that person who would be the person responsible for collecting the service tax. In other words, this provision, namely, Section 68(1A) cannot be so interpreted as to make a person, as an assessee even though he may not be responsible for collecting the service tax, The service tax is levied by reason of the services which are offered. The imposition is on the person rendering the service. Of course, it may be an indirect tax, it may be possible that the same is passed on to the customer but as far as the levy and assessment is concerned, it is the person rendering the service who alone can be regarded as an assessee and not the customer. This is the only way in which the provisions can be read harmoniously. 10. By amending the definition of person responsible for collecting the service tax in the impugned rules with regard to services provided by the clearing and forwarding agents and the goods transport operator, the person responsible is said to be the client or the customer of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving furnished a return under sub-section (1) or sub-section (2), discovers any omission or wrong statement therein, may furnish a return or a revised return, as the case may be, at any time before the assessment is made. 71. Assessment.- (1) For the purposes of making an assessment under this Chapter, the Central Excise Officer may serve on any person, who has furnished a return under Section 70 or upon whom a notice has been served under sub-section (2) of Section 70 (whether a return has been furnished or not), a notice requiring him on a date therein to be specified, to produce or cause to be produced such accounts or documents or other evidence as the Central Excise Officer may require from the noticee requiring the production of such further accounts or documents or other evidence as he may require. (2) The Central Excise Officer, after considering such accounts, documents or other evidence, if any, as he has obtained under sub-section (1) and after taking into account any relevant material, which he has gathered, shall by an order in writing, assess the value of taxable service and the amount of service tax payable on the basis of such assessment.' 12. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to carrying of goods by road in a goods carriage. Further, Section 117 of the Finance Act, 2000, provided for validation of service tax collected under Service Tax Rules to the effect that notwithstanding any order from any Court/Tribunal, sub-clauses (xii) and (xvii) of Clause (d) of sub-rule (1) of Rule 2 of the Service Tax Rules, 1994 as it stood immediately before the commencement of the Service Tax (Amendment) Rules, 1998, shall be deemed to be valid and have always been valid as if the said sub-clauses had been in force at all material times. Thus, these amendments were sought to nullify the effect of ruling of the Hon'ble Supreme Court in the case of Laghu Udyog Bharati (supra). The Appellant already deposited the tax. 3. The ld.Counsel for the Appellants, submits that no provision in particular was made by the amendment vide the Finance Act, 2000 to collect service tax for GTO services where neither the Assessee had paid nor the Revenue had taken an effective steps for collection of tax on such transaction. It is further taken note of the fact that the service tax in respect of GTO was re-introduced w.e.f. 01.01.2005 on the receiver of transport services (on rev ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
