TMI Blog2023 (7) TMI 883X X X X Extracts X X X X X X X X Extracts X X X X ..... ient M/S Reliance industries Ltd. Therefore, the activity of the appellant is clearly covered under section 66D (p)(i)(A) of the finance act ,1994 which clearly falls under negative list of services which is not taxable. Now it is a settled law that even if a person has provided Goods Transport Service but not issued consignment note/LR, Service Tax from that person under GTA cannot be recovered - From the decision in M/S. NARENDRA ROAD LINES P. LTD. AND HARI MOHAN GARG VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE CENTRAL GST, AGRA [ 2022 (3) TMI 803 - CESTAT ALLAHABAD] and M/S. MAHANADI COALFIELDS LTD. VERSUS COMMR. OF CENTRAL EXCISE SERVICE TAX, BBSR-I [ 2019 (7) TMI 1803 - CESTAT KOLKATA] , it is settled that a person even if provides Goods Transportation service but if he does not issue Consignment Notes/LR, he cannot be brought under the ambit of GTA. The case of the appellant is on much better footing on the admitted fact that the appellant s client FCPL is in fact the GTA who issued Consignment Note in respect of the Transportation Service provided to M/s Reliance Industries Ltd. Therefore, appellant is not liable to pay Service Tax. From provision of Sr. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the impugned Order-In-Original No. AHM-EXCUS-002-COMMR-74/2021-22 dated 30.03.2022 passed by the Commissioner CGST Central Excise, Ahmedabad. 2. The brief facts of the case are that an intelligence was gathered by the officers of DGGI that appellant had provided taxable services in relation to managing distribution and logistics and operational or administrative assistance in business to M/s Reliance Supply Chain Solution Ltd. (M/s RSCPL) M/s Fine Tech Corporation Pvt. Ltd. (M/s FCPL) from their various Branch Offices situated all over India. The service provided includes services like safe transportation of goods, upkeep of the vehicles, to check on route pilferages, maintain consistency, also provide drivers/ supervisors on 24 hours/ day basis and arrange diesel for the vehicles. Appellant had reportedly charged service charges on fixed lump sum basis per month per vehicle and variable cost at agreed rate for their own vehicles which appeared to be the consideration received against supply of tangible goods for use service which was taxable. Appellant had not issued any consignment note/LR in regards to such services for transportation of any of the consignments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he recipient of Services M/s Fine Tech Corporation was providing services by way of transport of goods by road. Further the term consignment note is defined as per the Explanation to the Rule 4B of erstwhile Service tax Rules, 1994 to mean a document issued by goods transport agency against the receipt of goods, for the purpose of transport of goods by road in goods carriage. In the present matter the Director of the Appellant Company, Shri Lalit Gandhi had clearly mentioned in his statement Dated 08.06.2020 against the question no. 6 that the Freight amount was charged from M/s Fine Tech Corporation on the basis of LR (i.e. Lorry Receipts) prepared by the later, i.e. M/s Fine Tech Corporation. These LRs are consignments note only, which customarily referred as Lorry receipts or LR in the business of transport of goods by road. These LRs issued by M/s Fine Tech Corporation are described as Consignment Note only and contain all the prescribed information like serial number, date of issue, details of consignor and consignee, vehicle number, details of goods, place of origin and destination, and most importantly the person liable for making payment of Service tax. Therefore, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty undertaken by the appellant remains of transportation of goods, and is entitled to be covered under Negative list vide entry No. (p)(i). 4.3 He also submits that in the present matter neither there was intention to evade payment of tax, nor there was any suppression of facts, and hence revenue grossly erred while invoking the extended period of limitation, and hence the show cause notice was time barred, and entire proceedings arising out of the said SCN are liable to be quashed. 4.4 Post hearing the appellant filed an additional submission dated 09.05.2023 which is taken on record. 5. Shri G. Kirupanandan, Learned Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the finding of the impugned order. 6. We have carefully considered the submissions made by both sides and perused the case records. 6.1 We find that the contract agreement with M/s FCPL was examined by the department and on the basis of that contract, it was alleged that appellant is engaged in providing taxable declared service of transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods as defined under Section 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vices of transportation of goods by road to M/s FCPL, but they have provided the services of supply of Vehicles to M/s FCPL. I therefore, find that the service provide by the M/s CLL is not covered under the Negative list of Service at Sr. No. 66D (p) (i)(A) as has been claimed by M/s CLL. In view of the above factual and documentary evidence available on records, I find that the claim of M/s CLL that service provided by them was covered under Negative list of service under Section 66D (p)(i)(A) of the Finance Act, 1994 is not tenable and is unsustainable in law. 6.2 We find that in the present matter Learned Commissioner denied the benefit of entry of Section 66D (p)(i)(A) of the Finance Act, 1994 to the appellant on the ground that Appellant has not provided the services of transportation of goods by road to M/s FCPL, but they have provided services of supply of vehicles to M/s FCPL. However this finding of Ld. Commissioner is factually and legally not correct as evident from the scope of service mentioned in the agreement entered by the parties. The scope of service mentioned in agreement is reproduced as below: I. Scope of Services: 1. To provide transportation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f GTA, the GTA should issue necessarily a consignment note then only services provided by the GTA are taxable under Finance Act, 1994. In the present matter it is admitted fact that in case of supply of transportation of goods services to M/s FCPL. Appellant have not issued any consignment notes. M/s FCPL issued consignment notes/LRs to consignee/consignor of goods. In such circumstance Appellant is not qualified under the Goods Transport Agency as per the above definition of GTA. Services of transportation of goods by a person other than GTA are clearly exempt under Section 66D (P)(i)(A) of the Finance Act, 1994. By observing the above legal position we find that the services of appellant is clearly excluded from the taxable services since it is covered in the Negative List Entry under Section 66D (p)(i) of the Finance Act, 1994. 6.6 To substantiate the above a sample copy of Consignment Note issued by Fine Tech Corporation Pvt. Ltd. is scanned below: On the basis of above Consignment Note , the appellant issued their Bills. Sample copy of their bill is scanned below: From the above Consignment Note issued by FCPL and the detail of the same appearing in A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 20.06.2012 is reproduced as below. 22. Services by way of giving on hire - (a) -----------------------, (b) to a goods transport agency, a means of transportation of goods; From the above provision we find that the services of providing vehicles on hire basis to GTA is covered under above Entry and this entry exempts the services by way of giving on hire a means of transportation of goods to a goods transport agency. Even if the contention of the revenue is accepted that the Appellant are not providing the transport of goods services to M/s FCPL and providing the vehicles on hire basis, the demand of service tax still not sustainable in the present matter. The Ld. Commissioner denied the benefit of above notification on assumption that the recipient of the services i.e M/s FCPL is not a Goods Transport Agency. However we have already discussed in above paragraph that in the present matter FCPL has issued consignment notes/ LRs for transportation of goods, hence M/s FCPL is clearly covered under the definition of Goods Transport Agency Service and if at all there is any Service Tax liability it is on the service recipient of FCPL i.e. M/s Reliance Industries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service. Therefore, considering the overall facts of the case, we are of the opinion that extended period of limitation could not have been invoked. Therefore, the demand for the extended period is not sustainable on limitation also. The above view is supported by the following Judgments: (a) In the case of Pahwa Chemicals Pvt. Ltd Vs. Commissioners of Central Excise, Delhi reported in 2005 (189) ELT 257 (Supreme Court) the Hon ble Apex Court held that mere failure to declare does not amount to wilful mis-declaration or wilful suppression and there must be some positive act on the part of the party to establish either wilful mis-declaration or wilful suppression. The Apex Court further held that when the facts are before the department and the party is in the belief that affixing of label makes no difference, does not make a declaration, there would be no wilful mis declaration or wilful suppression. If the department felt that the party was not entitled to the benefit of the notification it was for the department to immediately take up the contention that the benefit of the notification was lost. (b) In the case of Continental Foundation Joint Venture Vs. Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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