TMI Blog2018 (7) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... so - penalty u/s 76 not warranted and is set aside. Payment of amount of Maintenance and Repair service - Held that:- As far as the demand under this heading for services rendered by them is concerned, the appellant has not contested the demand confirmed and agreed to pay the same as they had been paying the service tax under this Head. Shifting charge will be treated under Cargo Handling Service - Held that:- The Cargo Handling services does not come under the category of Reverse Charge Mechanism and therefore, the service tax required to be paid by the provider of the service nor the recipient thereof - In this case the appellant is not provider of the services and therefore the demand on this account is not sustainable and is set aside. Commission paid to the foreign agent - Held that:- The contract was signed on 1/4/2006 and negotiation with the buyer was completed on 6/4/2006 as is evident from the copies of the contract - As held in the case of International Shipping Owners Association Vs. Union of India [2008 (12) TMI 41 - BOMBAY HIGH COURT], the service tax is not payable before 18/4/2006 i.e. the date of insertion of Section 66A in the Finance Act, 1994 - demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 73 (1) of the Act alongwith interest under Section 75 and penalty of equal amount under Section 78 of the Act. Further, penalty was also imposed upon the appellant under Section 77 of the Act. 3. Ld. Advocate submitted that Ld. Commissioner while confirming the demand under GTA service did not consider the definition of GTA service as defined under the Act. Also that the Commissioner while confirming the demand under GTA service, did not consider the facts that the amount paid to the truck owner for shifting per trip was less than ₹ 750/- and as per the Notification No.34/2004-ST dated 03/12/2004 for this they were not required to pay service tax. 4. On the GTA service under RCM, THE Ld. Advocate submitted that they have debited a sum of ₹ 41,79,51,785/-.During the material period, an amount of ₹ 37,51,81,282/- paid to GTA on which Service Tax is payable. The balance amount was paid to the lorry supplier against the lorry hiring charges to which service tax is not leviable as the same is not covered by the definition of GTA, pertained to earlier period. 5. That it should be appreciated that transportation of goods may be conducted in two ways- (1) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the period prior to 18/4/2006 i.e. before the insertion of Section 66A and therefore, service tax is not payable. It is now a settled law that service tax cannot be charged on the recipient of service in case of service received from abroad prior to 19/4/2006 i.e. insertion of Section 66 of Service Tax thereon. 7. The learned advocate relied upon the following judgements: (i) Aditya Cement Vs. CCE, Jaipur-II [2007 (STR) 153 (Tri.-Del.) (ii) Hindusthan Zinc Ltd. Vs. CCE, Jaipur[2008 (11) STR 338 ( Tri.- -LB) (iii) Gujarat Narmada Vs. Fertiliser Co. Ltd., Vadodara [2009 (40) STR 313 (Tri-Ahmd.)] (iv) Indian National Shipowners Association Vs. Union of India [2009 (13) S.T.R. 235 (Bom.) ] With respect to service charges on Management, Maintenance or repair service, Learned Advocate agreed that they were required to pay the service tax from the beginning and the balance payment agreed to be paid by the appellant shortly. The Ld. Advocate submitted that they have voluntarily admitted and paid the major portion of service tax liability before the issuance of show cause notice and never acted with malafide intention, also they never suppressed any ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod which substantiated the facts that no service tax is payable by the appellant. 12. Per contra, the Ld. D.R. submits that the findings of the adjudicating authority is correct in view of the facts and circumstances of the case but for the fact that the penalty is required to be imposed under Section 76 of the Act, and therefore, departmental appeal is required to be allowed in view of the ratio laid down in the case of Assistant Commissioner, Central Excise Vs. Krishna Poduval [2006 (1) S.T.R. 185 (Ker.)] 13. We have heard the parties and perused the appeal records. The issue involved in this case is determination falls in the following category: i) Payment of amount of Maintenance and Repair service : As far as the demand under this heading for services rendered by them is concerned, the appellant has not contested the demand confirmed and agreed to pay the same as they had been paying the service tax under this Head. ii) Shifting charge will be treated under Cargo Handling Service: They have agreed to pay the remaining amount, if required to the Department. As far as demand in respect of Shifting Charge is concerned, the same is not payable under GTA service de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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