TMI Blog2023 (9) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the adjudicating authority to consider the evidence available with Revenue and the evidence that may be submitted by the appellant - The Tribunal had directed the adjudicating authority to examine the documents available with Revenue, such ST-3 returns of all these consignees. The authority could have called for the connected invoices/Tax deposit Challans to ascertain payment. The adjudicating authority had to co-relate the same with the evidence that may be submitted by the appellant. It is to be noted that the Tribunal has carefully used the term may for the appellant, and the responsibility was placed on Revenue to examine the documents which were available with the Department. The department could have obtained the copy of the relevant ledgers, invoices etc., from the consignees through the jurisdictional Range officers. This has not been done by the adjudicating authority which clearly shows that he has not followed this Tribunal s remand order in letter and spirit. The Revenue has failed miserably to lead any evidence despite specific orders by this Tribunal. Secondly, having considered the issue on merits, we are of the firm opinion that the appellant acted as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... freight was borne by the consignees. Therefore, in terms of Rule 2(I)(d)(v) of Service Tax Rules, 1994, the consignees were liable to make payment of service tax on freight amount paid to transporter for transportation of coal. The Department, however, contended that the appellant is liable to pay service tax on transportation charges paid to transporter. Consequently, the Commissioner, Raipur issued the show cause notice dated 23.01.2008 and vide Order-in-Original No. Commr./RPR/71/2008 dated 22.08.2008 dropped the proceedings initiated against the appellant. Against the aforesaid order dated 22.08.2008, the Department preferred an appeal before the Tribunal. The Tribunal passed the order no. ST/A/705/2012 CU(DB) dated 21.11.2012 wherein the matter was remanded for a fresh decision after giving opportunity to the appellant to prove that service tax on all the impugned instances has been paid by the buyers of coal. The Tribunal also directed the adjudicating authority to record his findings for each contract separately, considering the evidence available with the Department and the evidence that may be submitted by the appellant. The present appeal is filed against the order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the contract dated 31.08.2006 entered with M/s Vandana Global Ltd., Raipur, it is evident that transportation charges from Gevra/Dipika to washery is @ Rs. 270/- PMT by CPCBL nominated transporter. This establishes the existence of the transporter nominated by the appellant. However, for arranging the transportation of raw coal, the appellant had worked only as agent/intermediary. The appellant entered into a Memorandum of Understanding on 15th September, 2004 with the transporter M/s Jai Jagdish Transport, Bhilai. A perusal of the said MOU, establishes that the appellant (CPCBL) was working as an agent of the consignees. The appellant had maintained proper account regarding recovery of freight amount from the consignees and payment made to the transporter. The learned counsel relied on the instance wherein the Superintendent, Range Service Tax, Rishi Bhawan, Bilaspur had enquired from M/s Gupta Metallics Power Ltd., Nagpur regarding deposition of service tax on transportation of coal during 2007-08. The said buyer of coal vide letter dated 03.10.2009 had confirmed the deposition of service tax. Another example cited was the letter written by Superintendent, Range Service Tax, R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 157997 5. Mahendra Sponge Power Pvt. Ltd., M.G. Road, Raipur 101096 6. Vandana Vidhyut Ltd., Vandana Bhawan, M.G. Road, Raipur 46454 7. ACC Ltd. P.O. Rasmada, Durg 684116 8. Rashmi Sponge Iron Pvt. Ltd., 2/511, Choubey Colony, Raipur 55972 9. Hi tech Power Steel Ltd., 199-C, 1st Floor, Main Road, Samta Colony, Raipur 228564 Total (I) 4282718 II UNDERTAKING SUBMITTED BY THE FOLLOWING CONSIGNEES S. No. Name of Consignee (buyer of Coal) Confirming Service Tax deposition (involved in the impugned matter) Rs. 1. G.R. Sponge Plot No. 102, Phase-II, Siltara, Raipur 97407 2. Ultratech Cemco Ltd. Hirmi Cement Works, Hirmi Raipur 148286 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shree Shyam Ispat Pvt. Ltd., Taraimal P.O.-Gerwani, Raigarh 33874 2. Gerwal Associates Ltd., Matakambeda,Keonjhar, Orissa 80812 3. Chattisgarh Electricity Company Ltd. Ind. Growth Centre, Siltara, Raipur 122954 4. Kamal Sponge Steel, Kama Villa, Bahdhavgarh Colony, Satna (MP) 56039 5. Indsil Energy and Electrochemicals Ltd., 49, AvanashiRoad,Coimbatore (T.N.) 49521 6. Ind Agro Synergy Ltd., 624, Urla, Raipur 42841 Total (III) 386041 Grand Total (I+II+III) 8594953 7. As regards the invocation of extended period, the counsel submitted that the appellant was regularly paying service tax on coal washing charges and ST-3 returns were regularly filed. Therefore, all facts were within the knowledge of the Department, and nothing was concealed. Hence, the extended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling benefit of Notification No. 32/2004-ST dated 03.12.2004 as amended, subject to the fulfilment of conditions prescribed in the Notification. For availing the benefit of the said Notification, they have to produce a certificate or documentary evidence from the transport agency that they have neither availed Cenvat credit on inputs or capital goods nor the benefit of Notification No. 12/2003-ST has been taken by them. The appellant had failed to produce any such evidence before adjudicating authority. Consequently, the appellant has not complied with the condition of the Notification/instructions contained in Board s Circular No. B1/6/2005-TRU dated 27.07.2005. Further, he stated that the appellant had not disclosed this fact of non-inclusion of such transportation charges paid by them during the said period in their ST-3 returns submitted by them to the Department. The Sr. No. 4(A) of ST-3 requires the disclosure of value of taxable services, in which the appellant had not shown such taxable value. This establishes their intent to evade the payment of service tax. Such non-payment of service tax was unearthed during the course of detailed investigation/Audit of the records of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e buyers of such beneficiated/washed coal. He has noted that in most contracts the scope of work was mainly transportation of raw coal from SECL Collieries to the appellant s factory and beneficiation of coal conforming to their specifications and supply at factory gate basis. He has gone on to note that in 14 work orders, the contract involved (i) purchase of raw coal from the appellant at a fixed price PMT; (ii) transportation of raw coal from Gevra/Dipika Colliery at a fixed cost;(iii) washing of coal to beneficiated coal at a fixed rate PMT. In the remaining contracts the only major difference was that the raw coal was purchased directly by the buyer of washed coal and the inward transportation cost for such raw coal and the washing charges were fixed as negotiated in the contract. He has gone on to observe that the appellant scope of work included price/rate specification for the transportation cost from Colliery to factory premises and coal washing charges. In all these contracts, he has gone on to observe that the appellant is appointing their own transporter, keeping different account, making payments to the transporters from there on account as a principal, although he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same with the evidence that may be submitted by the appellant. It is to be noted that the Tribunal has carefully used the term may for the appellant, and the responsibility was placed on Revenue to examine the documents which were available with the Department. The department could have obtained the copy of the relevant ledgers, invoices etc., from the consignees through the jurisdictional Range officers. This has not been done by the adjudicating authority which clearly shows that he has not followed this Tribunal s remand order in letter and spirit. 13. We find that the appellant has submitted the reconciliation of the details of the consignees who have furnished the challans and stated that the service tax deposited by them through challans includes the service tax liability is as follows: S. No. Name of buyer of Coal Challans submitted evidencing deposition of Service tax amount (Rs.) Service Tax liability involved in the instant case (Rs.) 1. M/s Vandana Global Raipur 19,00,053/- 2,89,598/- 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at this service tax liability for the invoices raised on the appellant has been discharged by them and they had also mentioned the service tax registration number and PAN number in their certificates. As against such documentary evidences, the first appellate authorities findings as to no authentic documentary evidence has been produced, seems to be incorrect. Since the certificate clearly indicate the service tax registration number, the lease that could have been expected from the revenue was to call for the details from the concerned jurisdictional service tax authorities. Having not done, the lower authorities cannot shift the entire blame on the appellants for having not produced any authentic documentary evidence. 9. I find that the decision of this Bench in the cases of M/s Navyug Alloys Pvt Ltd., Mandev Tubes, Geeta Industries Pvt Ltd., will squarely cover the issue in favour of the assessee. 14. Also, the Board in its Circular 341/18/2004-TRU (Pt) dated 17.12.2004 has clarified the following: 5.7. If Service Tax due on transportation of a consignment has been paid or is payable by a person liable to service tax, service tax should not be charged for the same amo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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