TMI Blog2024 (2) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 (9) TMI 1257 - CESTAT CHENNAI] Chennai Bench has held that we find that the other orders relied upon by the Ld. Consultant clearly confirm the view that the essential requirement is the issuance of consignment note in order to be covered under the definition of GTA and in the absence of the same, the transporters/contractors rendering transport services in mines cannot be said to be GTA and therefore, their service cannot be made amenable to the levy of Service Tax under the category of transportation of goods by road service. There are no merits in the impugned order and the same is set aside - appeal allowed. - HON BLE MR. P. K. CHOUDHARY , MEMBER ( JUDICIAL ) And HON BLE MR. SANJIV SRIVASTAVA , MEMBER ( TECHNICAL ) Shri M. B. Mathur , Advocate for the Appellant Shri Manish Raj , Authorised Representative for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Original No.(ST-56/2013)02 of 2014 dated 31/01/2014 passed by Commissioner of Central Excise Service Tax, Allahabad. By the impugned order following has been held:- ORDER (i) I confirm the demand of Rs.61,94,880/- (Rupees Sixty One Lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation contained in such contract/agreements. Revenue was of the view that services provided by the appellant were classifiable under the category of GTA Goods Transport Agency Services . 2.2 Show cause notice dated 12.04.2013 was issued to the appellant asking them to show cause as to why- 1) The service tax amounting to Rs.61,94,880/- (Sixty one lakhs ninety four thousand eight hundred eighty only) should not be demanded and recovered from them alongwith appropriate Interest under the proviso to Section 73 (1) of the Act r/w Section 75 of the Act. 2) Penalty should not be imposed upon them under the erstwhile Section 75A read with Section 77 of the Act for violation of Section 69 of the Act / Rule 4 of the Rules. 3) Penalty should not be imposed upon them under Section 77 of the Act for violation of Section 70 read with rule 7 of the Rules, in case of each default. 4) Penalty should not be imposed upon them under section 76 of the Act for violation Section 68 of the Act read with Rule 6 of the Rules. 5) Penalty should not be imposed upon them under Section 78 of the Act. 2.3 The said show cause notice was adjudicated as per the impugned order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od grains sugar etc. from one place in Division or outside it or any other items at the direction of RFC, RMO, DFMO and SMI/MI at rate fixed or to be fixed by the RF Cor Clause (24) (i) stipulates The handling transport contractor can submit bills fortnightly for the work done, duly complete in all respects with the work slips issued by the center incharge..... Clause (24) (ii) states It will be the duty of the contractor to obtain the work slips on the same day when work is done... Clause (40) mentions The contractor shall maintain daily account of all the items of work done by him and shall issue invoice on the prescribed form... . I have also perused transport challan bearing no. 11606 dated 16.5.2012 which has been produced by the party and issued by the Regional Food Controller, Division-Varanasi for movement of vehicle and find that the said document contains all requisite information in respect of the consignment. 31. I have gone through the allegations contained in the impugned SCN which intends to classify the services rendered by the party under the Goods Transport Agency Service and thus it becomes important to revisit the statutory provisions related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be subjected to service tax at the prescribed rate. The exemption will not be available if the goods transport agency has (i) taken Cenvat Credit of duty on inputs or capital goods used for providing taxable service; or (ii) taken Cenvat credit of service tax on input services used for providing taxable service; or (iii) availed exemption on cost of goods and materials sold to the recipient of the service, in terms of Notification No. 12/2003-St dated 20.6.2003. 37. Notification No. 12/2008-ST dated 1.3.2008 provides unconditional exemption from service tax on 75 per cent of the gross amount charged by the goods transport agency for providing the service. 38. Notification No. 33/2004-ST dated 3.12.2004 grants full exemption from tax to transport fruits, vegetables, eggs or milk by road in a goods carriage. Vide Notification No. 04/2010-ST dated 07.02.2010 the aforesaid notification have been amended by substituting, in the opening paragraph, for the words eggs or milk , the words eggs, milk, food grains or pulses . 39. Notification No. 34/2004-ST dated 3.12.2004 grants full exemption from tax in the following two situations: (a) where the gross amount cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. The party have also submitted that in terms of agreement with RFC, they only provided the trucks and Section 3(30) of the Motor Vehicle Act made RFC the owner of these trucks. In context of this argument of the party, I find that it is yet another of their attempts to obfuscate the issue by importing certain provisions of Motor Vehicle Act into the issue. In view of the facts of the case, I find that the ownership of the vehicles remains with the party and clearly the services provided by them are classifiable under GTA service. The party have also submitted that they are not issuing consignment note and therefore the said services cannot be made taxable under the category of GTA service. I find that on this point too, the party have presented the facts improperly. Clause (24) (ii) of the Agreement stipulates that- It will be the duty of the contractor to obtain the work slips on the same day when work is done... . Similarly, Clause (40) states that The contractor shall maintain daily account of all the items of work done by him and shall issue invoice on the prescribed form........ I have also perused transport challan bearing no. 11606 dated 16.5.2012 issued by R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the party by way of transportation of food grains by road is chargeable to service tax during the material time and appropriately classifiable under Goods Transport Agency Service . Therefore, I hold that the party is liable to pay service tax amounting to Rs.61,94,880/- (including cess) on gross taxable value Rs. 12,55,93,774/- received by them during the period 2007-08 to 2009-10. I further find that the demand of service tax amounting to Rs 61,94,880/- (including cess) has been calculated correctly by extending the benefit of 75% abatement, provided under Notification No. 1/2006-ST for the period from 2008-09 and 2009-10. I also find that during the period 2007-08, the party is not eligible to get the benefit of abatement, due to non-fulfillment of the specified conditions. 4.3 Undisputedly, in the present case appellant was not issuing any consignment note which is an essential requirement for classification of their services under the category of GTA. This fact about not issuance of consignment note is not disputed by the revenue that being so the services provided by the appellant cannot be classifiable under the category of GTA services for making the demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority was convinced that if the appellant had given documentary evidence showing FCI to be any corporate body established by or under any law, then the liability to pay Service Tax would have been on FCI and not the appellant. The only thing that adjudicating authority was not sure was whether Food Corporation of India is a corporation or not, as the appellant had not given any evidence/document for the same. The word Corporation is itself inbuilt in Food Corporation of India and also content downloaded from Wikipedia (which is easily accessible on internet) clearly shows Food Corporation of India as a Government owned corporation, leaving no doubt that FCI falls under the category of Rule 2(1) (d) of the Service Tax rules, 1994 and for this no documentary evidence was required. Hon'ble Tribunal, Delhi in the case of Amrita Mouldings Pvt. Ltd. Vs Commissioner of Central Excise, Ghaziabad (reported in 2013(30) S.T.R. 420) held that: In respect of GTA service when the consignor or consignee fall in the categories mentioned in Rule 2(1) (d)(v) of the Service Tax Rules, 1994 and Notification No. 35/2004-S.T., the person liable to pay service tax is the one who is l ..... 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