TMI Blog2024 (1) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of the appellant. In the case of LAKSHMINARAYANA MINING CO. VERSUS COMMR. OF ST., BANGALORE [ 2009 (9) TMI 71 - CESTAT, BANGALORE] Bangalore Tribunal has held that In the absence of a finding that the appellants had received the service of transport of goods from any GTA, the impugned demand of Service tax, and penalties are liable to be set aside. Thus, it is categorically held that in case transportation made by vehicle operator (in the present case tractor trolley owners) and no consignment note was issued, the service cannot be held as goods transport agency service liable to Service Tax. Therefore, the impugned order is not sustainable. The impugned order is set aside - Appeal is allowed. - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND HON'BLE MEMBER (TECHNICAL), MR. RAJU APPEARANCE: For the Appellant : Shri Surabh Dixit, Advocate. For the Respondent : Shri Rajesh R Kurup, Superintendent (AR). RAMESH NAIR The issue involved in the present case is that whether the Appellant is liable to pay Service Tax on amount of freight paid by them to tractor trolley owners, who did not issue any LR and transported the goods in such tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the revenue reiterates the findings of the impugned order. 4. On careful consideration of the submission made by both the sides and perusal of record, we find that the facts are not under dispute that the service of transportation was provided by tractor trolley owners themselves and no transport agency is involved. Freight of the transportation was paid by the appellant to such tractor trolley owner for the transportation of goods i.e. Gas cylinder, no LR/consignment note was issued. In this case even though the transportation activity is involved but the criteria for classifying a transport service under GTA are not fulfilled. Such as no consignment note/LR was issued and the transportation was provided by not the goods transport agency but individual tractor trolley owners Therefore, the service does not fall under the definition of GTA service. Accordingly, in our considered view the same is not taxable in the hands of the appellant. This issue has been considered time and again in the following judgments: a) In the case of Lakshminarayana Mining Co. 2009 (16) STR (69) Bangalore Tribunal has passed the following decisions: 4. We have heard both sides. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. We find that the claim of the appellants that the impugned services were not exigible to service tax is amply supported by the following extract of the Budget Speech of the Finance Minister, made while introducing the Finance Bill, 2004. 149. 58 services have been brought under the net so far. I propose to add some more this year. These are business exhibition services; airport services; services provided by transport booking agents, transport of goods by air; survey and exploration services; opinion poll services; intellectual property services other than copyright; brokers of forward contracts; pandal and shamiana contractors; outdoor caterers; independent TV/radio programme producers; construction services in respect of commercial or industrial constructions; and life insurance services to the extent of risk premium. I may clarify that there is no intention to levy service tax on truck owners or truck operators............ 5.2 From the above pronouncement by the Finance Minister, the legislative intent not to tax truck owners or truck operators is beyond doubt. In the absence of a finding that the appellants had received the service of transport of goods f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the assessee was entitled to Cenvat credit. 4. The question of law that arises for consideration in this appeal having since been answered by the Division Bench in the above referred appeal, the substantial question of law are answered in favour of the assessee and against the revenue. c) Similarly in the case of Bharat Swabhiman, this Tribunal has passed the following order: 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CU(DB), dated 13-1-2014 [2014 (34) S.T.R. 850 (Tribunal) and in NandganjSihori Sugar Co. Ltd. and others v. C.C.E., Lucknow unambiguously enunciated the principle that qua the definition of Goods Transport Agency enacted in Section 65(50b) of the Act, to fall within the ambit of the defined expression issuance of a consignment note is non-derogable ingredient. 7. In view of the law declared and the factual matrix of this appeal since where admittedly no consignment notes were issued by the 24 transporters for transportation of the appellant s coal, the Goods Transport Agency service cannot be held to have been rendered. That being the position the appellant is not liable to tax. 11. We note that the pursuant to directions of the Hon ble Chhattisgarh High Court [2016 (41) S.T.R. 608 (Chhattisgarh)], in the remand proceedings, the Tribunal in its Final Order dated 28-7-2016 has re-affirmed the aforesaid legal position to hold that the assessee has not received any GTA service, so as to make them amenable to service tax in absence of consignment notes. The issue of consignment note, is a non-derogable ingredient to make the goods transporter as Goods Transport Agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by the Learned Advocate for the appellant for allowing the misc. applications, seeking incorporation of additional ground. The misc. applications have been filed by the appellant in terms of Rule 10 of CESTAT (Procedure) Rules, 1982 which, for the sake of convenience, is reproduced below : Grounds which may be taken in Rule 10. appeal. - The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules : Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. In this connection, we take note of the decision of the Hon ble Supreme Court (Three Member Bench), in the case of National Thermal Power Co. Ltd. v. Commissioner of Income Tax, reported in 1998 (99) E.L.T. 200 (S.C.), which is to the effect that the Tribunal has jurisdiction to examine the question of law which arises on facts, as found by the authorities below, and having bearing on tax liability of assessee, even though said ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
