TMI Blog2018 (2) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignment 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 set aside. Appeal allowed - decided in favor of appellant. - Appeal No. ST/545/2009 - FINAL ORDER No. A/31914/2017 - Dated:- 15-11-2017 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu mohan damodhar, member(technical) Shri T. V. Ajayan, Advocate, for the Appellant Shri R. Srinivasa, Superintendent, AR for the Respondent ORDER [Order per: Madhu Mohan Damodhar] The facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 were also imposed. Hence, this appeal. 2. On 15.11.2017, when the matter came up for hearing, on behalf of appellants Ld. AdvocteShri T.V. Ajayan made oral and written submissions, which can be broadly summarised as under: (i) The exemption notification providing exemption in the form of abatement equal to 75% of the gross amount charged by the GTA, with the service tax payable only on remaining 25%, prescribed only two conditions namely, that no cenvat credit has been availed by the GTA of the excise duty on the inputs or the capital goods used to provide the taxable GTA services and that the GTA has not availed the benefit provided vide notification No. 12/2003 dated 20.06.2003. (ii) Since the exemption notification did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i R. Srinivasa supports the impugned order. 4. 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 This notification was rescinded w.e.f. 01.03.2006 by notification No. 2/2006-ST, dated 01.03.2006.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 allowing for discharge of service tax liability only on 25% of the gross amount charged by the GTA was continued by notification No. 01/2006-ST, dated 01.03.2006, without any conditions on declaration etc. Even this was amended vide notification No. 13/2008, dated 01.03.2008, which while maintaining 25% cap of gross amount charged for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 taken by them. The said circular is reproduced below: F.No. 137/154/2008-CX.4 Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs Dated August, 21, 2008 Subject : Service Tax GTA Certain further clarification in respect to clarification issued vide circular No. 5/1/2007-ST, dated 12.03.2007 regarding exemption under notification No. 32/2004-ST dated 03.12.2004 reg. 01. It may be recalled that a dispute had arisen whether or not the persons other than Goods Transport Agents (herein after called the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued in July 2005, such endorsements were not available on consignment notes issued prior to that period i.e. between Jan 2005 when the service tax was imposed on GTA service and July / August 2005, when the Board Circular reached the field formations. This has been the reason for certain notices still remaining pending. 04. The matter has been examined. Considering the facts and circumstances of the case and in partial modification of the instructions contained 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed by CBEC circular regarding declaration by GTA of consignees are beyond requirement of exemption notification. The Tribunal also held that it is settled law that CBEC circulars cannot restrict or expand the amplitude of an exemption notification nor can they add/subtract conditionalities thereto/ there from. e) In a landmark judgment, Hon ble Apex Court in the case of Union of India vs. Inter Continental (India) [2008(226)E.L.T 16(S.C), upheld the judgment of Hon ble High Court of Gujarat holding that the department by issuing a circular subsequent to the notification could not add new conditions to the notification thereby restricting the scope of exemption notification or whittling it down. f) In the case of Mutual Industr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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