TMI Blog2023 (9) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT CHENNAI] had occasion to consider the similar issue has observed In cases where admittedly no consignment notes have been issued, the said transporter cannot be called Goods Transport Agency - In the said case, the Tribunal followed the decision in South Eastern Coalfields Ltd. Vs. Commissioner of Central Excise [ 2016 (8) TMI 677 - CESTAT NEW DELHI] , and held that the demand cannot be sustained if no consignment note has been issued to the service recipient. Thus, the demand of Service Tax cannot be sustained. The issue on merits is answered in favour of assessee. Time Limitation - HELD THAT:- The situation is entirely a revenue neutral as well as the fact that several audits have been conducted raising the objection of non-payment of Service Tax under GTA services. The Department had full knowledge about the issue and still the Show Cause Notice has been issued invoking the extended period which in our view cannot be sustained. The appellant succeeds on the ground of limitation also. The impugned order is set aside. The appeal is allowed. - HON BLE MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) AND HON BLE MR. VASA SESHAGIRI RAO, MEMBER (TECHNICAL) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1948) b. any company [formed or registered under] the Companies Act, 1956 (1 of 1956) c. any corporation established by or under any law; d. any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; e. any co-operative society established by or under any law; f. any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder; or g. any body corporate established, or a partnership firm registered, by or under any law, 3. The same Rules were adverted to by the Ld. counsel to submit that unless a consignment note has been issued by the goods transport agency, the service recipient cannot be called upon to pay the Service Tax. Rule 4B is reproduced as under:- 4B- Any goods transport agency which provides service in relation to transport of goods by road in a goods carriage shall issue a consignment note 12[to the recipient of service]; Provided that where any taxable service in relation to transport of goods by road in a goods carriage is wholly exempted under section 93 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices of transportation of goods by a person other than GTA are exempt. Moreover, in cases where the service of GTA is availed by the specified categories of persons in the taxable territory, the recipients who avail such services are the ones liable to pay GST and not the supplier of services unless the GTA opts for collecting and paying taxes @ 12% (6% CGST + 6% SGST). In all other cases where GTA service is availed by persons other than those specified, the GTA service supplier is the person liable to pay GST. The GTA service supplier is not entitled to take ITC on input services availed by him if tax is being charged @ 5% (2.5% CGST + 2.5% SGST). In case the GTA service supplier hires any means of transport to provide his output service, no GST is payable on such inputs. In a nutshell, the GST law continues the provisions prevailing under the Service Tax regime. The law recognises that pure transportation of goods services are mostly provided by persons in the unorganised sector and hence has specifically excluded such operators from the tax net. In respect of those who provide agency services in transport, the liability is cast on the recipients in most of the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e demand raised invoking the extended period may be set aside. The Ld. counsel prayed that the appeal may be allowed. 10. The Ld. Authorised Representative Shri N. Satyanarayanan appeared and argued for the Department. The discussions made in paragraph 6.2 of the Order-in-Appeal was adverted to by the Ld. AR to submit that merely because the consignment note has not been issued, the appellant cannot escape the liability of paying Service Tax. The authorities below have considered this aspect and thereafter have confirmed the demand. 11. Heard both sides. 12. The issue is whether the appellant is liable to pay Service Tax under Goods Transport Agency services. The provisions of law have already been noticed. As per the definition under 60(50b) of the Finance Act, 1994, only if the service provider in relation to the transportation of goods by road issues a consignment note, the levy of Service Tax would be attracted to the carriage of goods by the goods transport agency. The Service Tax Rules under Section 2(1)(b), provides that the recipient of service is liable to pay the Service Tax. In the present case, the demand has been raised upon the appellant alleging that they ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called; It is clear that to be called goods transport agency a person should fulfil two conditions, namely, he should provide service in relation to transport of goods by road and issue consignment note, by whatever name called. In the present case, admittedly, no consignment note was issued by the goods transporter. The original authority held that the slip/challans issued for monitoring purposes by the appellant (receiver of service) will satisfy such conditions and tax liability can be upheld. We are unable to understand or appreciate such reasoning. The original authority is creating an amalgamation of service provider and recipient to fit in the definition of Goods Transport Agency. In other words, the transport of coal is done by the transport contractor which satisfied the first condition but no consignment note being issued. The slip issued by the appellant as recipient of service is taken with such activity of transport to bring in tax liability. We find that such attempt is beyond the scope of law and without merit. 7. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice. 16. In the case of Bharat Swabhiman (Nyas) (supra), the Tribunal held as under:- 17. The next issue that remains to be decided is whether the appellant is liable to pay service tax on the freight amount paid by it on a reverse charge mechanism. 18. Goods transport agency service has been defined in Section 65(26) of the Finance Act to mean any person who provides service in relation to transport of goods by road and issues consignment notes, by whatever name called. In the present case, consignment notes have not been issued and so the activities cannot be said to be covered under goods transport agency services. 19. In this connection it would be useful to refer to the decision of the Tribunal in Bhoramdeo Sahakari Shakhar Utpadam Karkhana v. Commissioner of Customs, Central Excise Service Tax, Raipur [2019 (10) TMI 1416-CESTAT, New Delhi], wherein it has been held that service tax can be levied only if consignment notes are issued. 20. Thus, service tax liability could not have been fastened on the appellant under the reserve charge mechanism. 21. It would, therefore, not be necessary to examine the other contentions raised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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