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Vijai Bhavani Power Tech. Pvt. Ltd Versus CCE, C & ST, Visakhapatnam-II

2018 (2) TMI 928 - CESTAT HYDERABAD

GTA service - N/N. 35/2004-ST, dated 03.12.2004 - Department took the view that notification exemption is not available to appellant as there was no evidence to show that the conditions of the notification were fulfilled - Held that: - Notification No. 32/2004-ST restricted the service tax liability on taxable value in respect of services provided by Goods Transport Agency (GTA) to 25% of the gross amount charged. This notification was rescinded w.e.f. 01.03.2006 by notification No. 2/2006-ST, d .....

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e benefit of such abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA - In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008 - demand do not sustain. - Appeal allowed - .....

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goods were also a person liable for payment of service tax on GTA services availed by them in terms of notification No. 35/2004-ST, dated 03.12.2004. 2. On study of the ST-3 returns filed by the appellant for the period 01/2005 to 02/2006, it was noticed that they were discharging service tax liability on 25% of the total freight charges paid by them, availing the benefit of Notification No. 32/2004-ST, dated 03.12.2004. Though appellants were not the providers of Goods Transport by Road Servic .....

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er dated 05.12.2007, dropped the proceedings in the matter extending the benefit of exemption to appellant, relying on the undertaking letters furnished by the transporters of the appellant to the effect that they have not availed the credit of duty on inputs and capital goods used for providing such taxable service and also that they have not availed benefit of notification No. 12/03-ST, dt. 20.06.2003. However, a revision notice was issued on 18.03.2008, under section 84 of the Finance Act, 19 .....

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r of Tribunal decisions which have been consistently held that Board Circular cannot add unintended conditions or whittle down the exemption notification and restrict any scope. There has been substantial compliance of notification No. 32/2004-ST, dated 03.12.2004 which does not require any such clarification but only require that transport/GTA should not have been taken credit on inputs or capital goods and should not have availed the benefit of Notification No. 12/2003-ST, dated 20.06.2003. Ld .....

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ification benefit is not just and fair. 5. On the other hand, on behalf of the Revenue, Ld. AR, ShriTarunKantiBasu, supports the impugned order. 6. Heard both sides and gone through the facts. Notification No. 32/2004-ST restricted the service tax liability on taxable value in respect of services provided by Goods Transport Agency (GTA) to 25% of the gross amount charged. This notification was rescinded w.e.f. 01.03.2006 by notification No. 2/2006-ST, dated 01.03.2006. However, the exemption all .....

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le service provided by Goods Transport Agency to any person . 7. In a letter No. 6/2005-TRU, dt. 27.07.2005, the CBEC inter-alia clarified that in cases where liability for tax payment in respect of GTA services is on the consignor or consignee, a declaration by GTA in the consignment note issued, to the effect that neither credit on inputs or capital goods used for provision of service has been taken nor the benefit of notification No. 12/2003-ST has been taken by them, would suffice for the pu .....

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s the service tax, without requirement to prove non-availment of cenvat credit by GTA service provider. 9. CBEC issued yet another circular F.No. 137/154/2008-CX, dated 21.08.2008, which, further clarified that benefit of availment of abatement may also be extended in past cases if the tax payers produce a general declaration from GTA to the effect that neither credit of inputs or capital goods used for the provision of service has been taken nor the benefit of notification No. 12/2003 has been .....

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n Goods Transport Agents (herein after called the GTA) i.e. consignor or consignee, whosoever pays tax under reverse charge method under the provision of the Service Tax Rules is also eligible for abatement of 75% under the notification No.32/2004-ST dated 3-12-2004 (now replaced by notification No.1/2006-ST). The Board, vide circular No.5/1/2007-ST dated 27-7-2005 had clarified that such persons are also eligible for availing the benefit of the notification, subject to fulfillment of the condit .....

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ts of CENVAT Credit or benefit of notification No.12/2003-ST. In this regard, vide Para 31 of the circular No.B1/6/2005-TRU dated 27-7-05, it was clarified by the Board that such a declaration from the GTA on the consignment note issued, tothe effect that neither credit on input or capital goods used for the provision ofservice has been taken nor the benefit of notification No.12/2003-ST has beentaken by them may suffice for the purpose of availment of abatement by personliable to pay service ta .....

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tained in Circular No.B1/6/2005-TRU dated 27-7-2005, it is clarified that the benefit of availment of abatement may also be extended in past cases if the taxpayers produce a general declaration from the GTA to the service has been taken nor the benefit of notification No.12/2003-ST has been taken by them. 05. The past cases may be decided accordingly. 06. This issues with the approval of the Member (Service Tax). 10. On appreciating the aforesaid chronological events and various clarifications o .....

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lants have obtained such undertaking letters from concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008. Hence, the impugned order cannot sustain and will require to be set aside, which we hereby do. 11. In arriving at this decision, we also draw sustenance from the ratio of the following case laws: a) CCA Allahabad Vs. SangamStructurals Ltd. [2015(39)STR 1034(Tri.-Del.)] b) CCE Rajkot Vs. Adv .....

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