TMI Blog2021 (5) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... ESWAR-II [ 2020 (3) TMI 851 - CESTAT KOLKATA] . The impugned order of the lower appellate authority is unsustainable - Appeal allowed - decided in favor of appellant. - Service Tax Appeal No.77413 of 2018 - FINAL ORDER NO. 75246/2021 - Dated:- 12-5-2021 - MR. P.K.CHOUDHARY, MEMBER (JUDICIAL) Dr.Samir Chakraborty, Sr.Advocate Shri Abhijit Biswas, Advocate for the Appellant Shri A.K.Biswas, Authorized Representative for the Respondent ORDER This appeal is against an order dated 17.04.2018 passed by the Commissioner (Appeals), CGST CEX Commissionerate, Kolkata, upholding confirmation of demand of service tax of ₹ 22,14,741/- (including cesses) against the appellant under Section 73 of the Finance Act, 1994 (hereinafter referred to as the Act ) read with Rule 6 of the Service Tax Rules, 1994 (in short, the Rules ), along with interest in terms of Section 75 of the Act and penalty of an equivalent amount under Section 78 of the Act by the adjudicating order dated 09.12.2014 passed by the Additional Commissioner of Central Excise Service Tax, Bolpur. 2. The facts in brief are: (i) The appellant, who is engaged in the manufacture of Kraft Pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order. The Commissioner (Appeals), while upholding the demand of service tax and interest and imposition of penalty under Section 78 of the Act, set aside the penalties imposed under the various clauses of Section 77 of the Act. Being aggrieved, the instant appeal has been preferred by the appellant. 3. I have heard Dr. Samir Chakraborty, Senior Advocate on behalf of the appellant and Mr.A.K.Biswas, learned AR on behalf of the Department and have perused carefully the records of the proceedings. 4. It has been contended on behalf of the appellant by Dr. Chakraborty as under: (i) On application of the correct proposition of law as laid down in decisions, including that of the jurisdictional Bench of the Tribunal, to the undisputed facts and materials on record of the instant case, it is conclusively evident that there was no liability on the part of the appellant to make payment of service tax on the freight charges involved in the instant case during the period involved and that the demand of service tax and interest confirmed and the penalty imposed upon the appellant are illegal, invalid, untenable and unsustainable. (ii) From the materials on record, including th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the erroneous reasonings contained in the impugned order and the adjudication order, on the facts and circumstances on record of the instant case, there can be no invocation of the extended period of limitation contained in the Proviso to Section 73(1) of the Act. Reliance in this regard has been placed upon the following decisions: (i) Uniworth Textiles Ltd. Vs. CCE, 2013 (288) ELT 161 (SC) (ii) Continental Foundation Jt. Venture Vs. CCE, 2007 (216) ELT 177 (SC) (iii) Jaiprakash Industries Ltd. Vs. CCE, 2002 (146) ELT 481 (SC). The impugned order is therefore liable to be and should be set aside. 5. Mr.A.K.Biswas, learned AR appearing on behalf of Department reiterates the findings of the lower appellate authority and the adjudicating authority and prays for upholding of the impugned order. 6. The relevant legal provisions governing the applicability of service tax in the case of GTA services are as follows: (i) Section 65(50b) of Finance Act, 1994 defines Goods Transport Agency to mean any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called . (ii) Taxable Service in rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 4B of challans forming part of the bills/invoices to form a consignment note as envisaged under Rule 4B of the Rules. The inference of Commissioner (Appeals) is therefore beyond the scope of Rule 4B, contrary to settled principle of interpretation of a taxing statute s provisions and hence untenable. 6.3 The acknowledgement by the lower appellate authority in the impugned order as regards the contents of the bills/invoices raised by the transporters, on the other hand, establishes that the bills/invoices raised by the transporters are not consignment notes as per Rule 4B of the Rules. 6.4 In the premises, as per legal principles decided by different Benches of the Tribunal, delivery of the goods by the transporters in the instant case does not fall under GTA services in terms of Section 65(105)(zzp) of the Act. Consequently, the said transporters cannot be said to be Goods Transport Agency within the meaning of Section 65(50b) of the Act. 6.4.1 In the case of East India Minerals Ltd. Vs. Commr. of C.Ex., Cus ST (supra), this Bench (DB) of the Tribunal, in a similar case as the instant case, has held as follows: 15. We have carefully gone through the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncern itself with input service. Nevertheless, in situations of liability to tax on reverse charge, such an escapement from obligation is not possible. It is up to the recipient of the service to discharge tax liability and, in the event of failure to do so, to explain or justify the tax liability having not been discharged. According to respondent, they had not utilized goods transport agency service . 7. The case of Revenue is that a transporter has been used and monthly bills containing essential ingredients of the consignment note, as laid down in Rule 4B of Service Tax Rules, 1994 were issued. According to Learned Authorised Representative, with Rule 4B prescribing the contents of a consignment note, decision in re Bharathi Soap Works on nonissue of consignment note which is normative, tax liability of the recipient does not get erased. 8. It is not the transportation of goods by road that is subject to tax but the services rendered by a goods transport agency in relation to the transportation of goods by road and road transport agency tasked with responsibilities that others connected with road transport are not, with consignment note being the point of difference ..... X X X X Extracts X X X X X X X X Extracts X X X X
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