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2019 (9) TMI 178

..... ntentions raised by the appellant relates to the factual verification, which cannot be done at the level of the Tribunal. Extended period of limitation - HELD THAT:- In the absence of any evidence to the contrary indicating any mala fide on the part of the assessee, the extended period of limitation was not available to the Revenue. However, a part of the demand falls within the limitation period and as such, we have not given any findings on merits on the ground of factual verification. The matter remanded to the Original Adjudicating Authority to deal with the merits of the case for the period falling within the limitation and to re-decide the same after taking into consideration the appellant’s contention - appeal allowed by way of .....

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..... ction 77 of the Act. 3. The learned advocate appearing for the appellant have advanced the following grounds in their written submission:- A. The demand confirmed by the Commissioner is as based on 3 Tables, DS1, DS2 AND DS3. The demand under each table is discussed below;- (i) The demand in Tables DS1 is for ₹ 33,961/- (Pg-104) for the period 2012-13 to 2015-16. The Commissioner has unnecessary drawn a distinction between outward transportation (to outside parties of the customer, M/s. Coromandal International Ltd.) and local transportation of fertilizers within the city, Agra from the railway station to the godown. During the period 15.11.2015 to 31.03.2016 the appellants had billed their customer for local movement under various he .....

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..... 6,297/- is as per Table DS3 (Page 111 and 112). (a) In respect of serial no.1 of Table DS3 the matter has been discussed on page 99 of the appeal. For local transportation from rail-head to godown, within the city of Agra, the appellants had entered into a composite contract with their customers for various services like loading and unloading, stacking, transportation etc for which separate rates were provided. The appellants collected service tax for all charges local transportation of chemical fertilizers as per serial no. 21 (e) of notification no. 25/2012-ST dated 20.6.2012. In any case, for such transportation the appellants were functioning as a GTA service provider and the liability to pay service tax was on the recipient, M/s. Tata .....

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..... ed under the Negative list, SI no. (p) (i) of section 66D of the Finance Act, 1994. Apart from this, the transportation charge in each case was less than ₹ 750/- per consignment and was exempt vide serial no. 21(c) of notification no.25/2012-ST dated 20.06.2012. B. In the operations listed above the appellants were not functioning as C&F Agents. The role of a C&F agent has been described in Board s Circular F. No. B-43/7/97-TRU dated 11.07.1997 (Communicated to Trade vide Trade Notice dated 14.07.1997 page 28 of the compilation). The service provided by appellants did not fulfil these conditions (E.g. no work of clearance being done, no invoice being issued etc) C. The demand in the instant case is for the period 2012-13 to 20 .....

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..... Returns, in which case no mala fide can be attributed to the appellant so as to justifiably invoke the longer period of limitation. We agree with the appellant on the said aspect and hold that in the absence of any evidence to the contrary indicating any mala fide on the part of the assessee, the extended period of limitation was not available to the Revenue. However, a part of the demand falls within the limitation period and as such, we have not given any findings on merits on the ground of factual verification. We deem it fit to set aside the impugned order and remand the matter to the Original Adjudicating Authority to deal with the merits of the case for the period falling within the limitation and to re-decide the same after taking i .....

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