TMI Blog2018 (6) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... the said transporter cannot be called Goods Transport Agency - the appellant do not fall under the definition of Goods Transport Agency, whose services are taxable in view of Section 65 (zzb) of the Finance Act. Scope of SCN - Held that:- In the present case perusal of show cause notice dated 05.04.2011 shows that the appellant has been fastened with the liability of Service Tax on the presumption of it being GTA. The show cause notice is absolutely silent about the appellant to not to be entitled for any exemption under Special Economic Zone Act, 2005 - Keeping in view that the show cause notice is the foundation of demand, the proceedings on the lines contrary to the allegations therein deserves rejection. The appellant being a unit in special economic zone shall be entitled for exemption in furtherance of Section 26 (1) (e) read with Section 26 (2) of SEZ Act and read with Rule 31 of SEZ Rules, 2006. Whether SCN is time barred? - Held that:- The SCN dated 05.04.2011 has been issued to the appellant calling him upon to discharge the service tax liability for the period from October 2005 to September, 2008. The entire demand is beyond the normal period of limitation of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd both the parties at length. 4. The appellant has put forth his argument in four folds as below:- 4.1 The first one is that appellant has wrongly been held as Goods Transport Agency (GTA) by the adjudicating authorities below. It is impressed upon that the appellant does not fall under Section 50B of the Finance Act and since it is not GTA the transport provided by them does not fall under the taxable service. Appellant has relied upon the case of South Eastern Coal Fields Ltd. vs. Commissioner of Raipur 2016-TIOL-2773- CESTAT-Delhi in Service Tax Appeal No.227/2008 decided on 27.07.2016. Second line of argument is that the findings of the Commissioner (Appeals) specifically in para 63 64 of the order under challenge are alleged to be beyond the scope of show cause notice and are therefore, not sustainable. Commissioner of Customs Mumbai vs. Toyo Engineering India Limited- 2006 (201) ELT 513 (SC) has been relied upon to impress that the grounds, which do not find mention in the show cause notice the Department is not allowed to travel beyond the grounds which are mentioned in the show cause notice. The third line of argument is that since the appellant unit is in Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered by Commissioner (Appeals), who after relying upon Rule 19 of Special Economic Rules, 2006 has held that the letter of approval in Form G for setting up of the Unit has not been obtained from the Development Commissioner and as such, the service activity including that of trading cannot be categorized as authorized operation. As far as, the show cause notice being time barred, the argument is refuted on the plea of entitlement for extended period provision, for the reason that noticee despite the demand failed to disclose the relevant facts and to provide the relevant documents to the Department. Also it cannot be the case of escape of taxability of Service Tax by SRF, which belongs to organize sector but the benefit of extended period is very much available to the Department and thus, the show cause notice is well within the time. With these submissions, Department has prayed for the appeal to be rejected. 6. After hearing both the parties at length and perusal, of the entire record, we hereby deal all the arguments as follows:- 6.1 The first line of argument is as to whether the appellant can be called as the goods transport agency as defined under Section 50 (b) of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition at Section 65(50b) has to be understood independent of Rule 4B of the Service Tax Rules, 1994 to decide whether the person concerned is a goods transport agency. 10. In Northern Coalfields Limited vs. C.C.E., Bhopal vide Final Order No.53313/2015 dated 29.10.2015, an identical situation was examined by the Tribunal. There also, the payment slips were generated by the service recipient containing relevant particulars like truck number, weight etc. for monitoring and paying contractors for their service. No consignment notes were issued by the transporter. The Tribunal held that as no consignment note as generally understood or delineated in Rule 4 B was issued by the transporter to the appellant in the transaction the tax liability under GTA does not arise. From the above discussions, we have no hesitation to hold that the appellant do not fall under the definition of Goods Transport Agency, whose services are taxable in view of Section 65 (zzb) of the Finance Act. 11. Coming to the argument of the order under challenge to be beyond the scope of show cause notice, we relied upon the case laws provided by the appellant in this respect, wherein the Hon ble Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e India; (c) Exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 (5 of 1986) or any other law for the time being in force, on goods brought from Domestic Tariff Area to a Special Economic Zone or Unit, to carry on the authorised operations by the Developer or entrepreneur; (d) Drawback or such other benefits as may be admissible from time to time on goods brought or services provided from the Domestic Tariff Area into a Special Economic Zone or Unit or services provided in a Special Economic Zone or Unit by the service providers located outside India to carry on the authorised operations by the Developer or entrepreneur; (e) Exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone; (f) Exemption from the securities transaction tax leviable under section 98 of the Finance (No. 2) Act, 2004 (23 of 2004) in case the taxable securities transactions are entered into by a non- resident through the International Financial Services Centre; (g) Exemption from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the taxable services provided to a developer or unit to carry on the authorised operations in the said economic zones the unit is entitled for exemption and if any tax liability has been discharged, such unit is entitled for the refund thereof. Further, the order of Commissioner (Appeals) holding that the services rendered by the appellant do not amount to consumption within the Special Economic Zone as is mandate in furtherance of Circular No.4/2004-ST dated 31st March, 2004 thereby upholding the service tax liability of the appellant is a wrong finding to our opinion as that the said Notification being a conditional exemption Notification issued under Section 93 of the Finance Act 1994 cannot be interpreted on the basis of the provisions of SEZ Act, 2005 or the Rules made there-under and the conditions specified therein have to be fully satisfied for availing the benefit under the said Notification. Also the Notification came into force much before the Special Economic Zones Act or the Rules made there-under. Had the intention of Legislature was to align the exemption with Section 26 of SEZ Act or Rule 31 of SEZ Rules then Notification No. 4/2004-ST would have been amended to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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