TMI Blog2022 (3) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... ransport Agency service cannot be sustained. The demand of service tax is not sustainable against the appellant - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 944-945 of 2009 - Final Order Nos. 20082-20083/2022 - Dated:- 3-3-2022 - MR. ASHOK JINDAL, JUDICIAL MEMBER AND MR. C. J. MATHEW, TECHNICAL MEMBER For the Appellants : Mr. Ashok A. Deshpande, Advocate For the Respondent : Mr. P. Gopakumar, Additional Commissioner (AR) ORDER The appellant has filed these appeals against the impugned orders demanding service tax under the category of Goods Transport Agency Services . 2. The brief facts of the case are that the appellant is a partnership firm and engaged in mining activities. The appellant has been availing the services of Goods Transport for transport of iron ore by road in a goods carrier. The Revenue is of the view that appellant has availed the services of transport of goods but have not paid service tax being recipient of the service, therefore for the period 20/02/2005 to March 2006, two show-cause notices were issued to demand service tax under the category of Goods Transport Agency Service . The matter was adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Bang.)] =2009-TIOL-1123-CESTAT-BANG followed in Shreenath Mhaskoba Sakhar Karkhana Ltd vs. Commissioner of Central Excise, Pune III [2017 (3) GSTL 199 (Tri.-Mumbai)] and in Commissioner of Central Excise and Service Tax, Aurangabad vs. Jaikumar Fulchand Ajmera [2017 (48) STR 52 (Tri.-Mumbai)] =2016-TIOL-2566-CESTAT-MUM the issue stands settled with detailed orders. In re Jaikumar Fulchand Ajmera, it was held that: 4. Our decision In Re: Kanaka Durga Oil Products Ltd. has excluded the individual truck owner from the purview of the tax in Section 65(105)(zzp) of Finance Act, 1994. We have perused the definition of goods transport agency in Section 65 (50b) of Finance Act, 1994 and find that an essential characteristic of provider of the service is the issuance of a consignment note. Revenue has resorted to a circular logic by claiming that Rule 4B of Service Tax Rules, 2004 requires the goods transport agency to issue a consignment note. This, according to us, is a specious line of reasoning as the provider of goods transport agency service being determined by issuance of consignment note under the statute, it is not within the ambit of a subordinate legislation to create t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order that these were indication of acceptance of tax liability. Furthermore, the reference to goods consignment number in the 'trip sheet' does not constitute the issue of 'goods consignment note' which is essential pre-requisite for taxation of the service. 11. In the light of the above, it would appear that the activity performed for the appellant by transporters falls outside the ambit of section 65(105) (zzp) of Finance Act, 1994 and is not taxable in their hands. 12. For the above reason, we set aside the impugned order and allow the appeal. 6.2 Further, in the case of Bhima Sahakari Sakhar Karkhana Ltd. cited supra, the Tribunal in Para 7 8 has held as under: 7. On deeper perusal of the records, we find that appellant has been taking a stand that the amounts paid by them as inward freight was paid to owners of individual trucks and not to Goods Transport Agency. It is seen from the records this stand of the appellant is not controverted by Revenue in any way as also the stand that no consignment note is issued by truck owners. We agree to the submission made by the learned Counsel that the issue is now squarely covered by the recent judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency represent its liability to transport the consignment handed over to it to the destination and deliver the same to the consignee and merely a bill issued for transportation of goods cannot be treated as Consignment Note. The fact of non-issue of consignment to M/s. Nandganj is admitted in the show cause notice itself. In case of M/s. Bajpur though it is not mentioned in the show cause notice, this plea has been made by the Appellant and the same has not been refuted. The transportation of goods by individual truck owners without issue of consignment note, GR's abilities, etc. as prescribed in Rule 4B of the Service Tax Rules, would be simple transportation and not the service of Goods Transport Agency which involves not only undertaking the transportation of the goods handed over to it but also undertaking delivery of the goods to the consignee and also temporary storage of the goods till delivery. When the transports did not issue consignment notes or GRs or Challans or any documents containing the particular as prescribed in Explanation to Rule 4B of the Service Tax Rules, 1994, the Transporters cannot be called Goods Transport Agency and, hence, in these cases, the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 4B was issued by the transporter to the appellant in the transaction the tax liability under GTA does not arise. 6.4. Further, we find that the other decisions relied upon by the appellant are also covering the issue in favour of the appellant. As far as limitation is concerned, we find that the extended period has wrongly been invoked in the present case because the appellant has not suppressed the material fact from the Department as the Department was aware of all the information and moreover, the issue was highly contentious and there were contrary decisions during the relevant time and the appellant had a bona fide belief that they are not liable to pay Service Tax as they have engaged the truck operators for carrying their goods by road. Further, we find that the case law relied upon by the Departmental Representative are not squarely applicable to the facts of the present case and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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