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TMI Blog2024 (5) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... f refund. Hence this appeal. 2. The learned counsel Shri J. Shankara Raman appeared and argued for the appellant. It is submitted that the raw materials and finished products of the appellant company was transported by M/s. Shiva Cargo Movers Ltd. The appellant paid service tax on the charges paid to M/s. Shiva Cargo Movers Ltd. on reverse charge mechanism as a service recipient for the period from June 2010 to July 2013. M/s. Shiva Cargo Movers Ltd., do not fall within the definition of goods transport agency as under Section 65 (50 b) of Finance Act, 1994 for the reason that they are owners of lorries. Being the owners of the trucks used for transportation of goods, M/s. Shiva Cargo Movers is not liable to pay Service Tax. When the provider of service is not liable to pay service tax, the appellant, ought not to have paid tax under reverse charge mechanism. The appellant therefore had filed the above refund claim for refund of the service tax paid on freight charges paid to M/s. Shiva Cargo Movers. 3. The department has taken the view that M/s. Shiva Cargo Movers Ltd., issued invoices to the appellant containing the ingredients of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual truck operator, there is no responsibility caused for the carriage of the goods and is merely performing the activity of transport of goods. Such activity of mere transportation is not subject to levy of service tax. The Tribunal in the said case had also referred to the speech of the Hon'ble Finance Minister made while introducing the finance bill, 2004. The Tribunal set aside the demand. 6. The decision in the case of Ramco Cements Ltd. Vs. Commissioner of Central Excise, Tiruchirappalli, 2023 13 Centax 154 (Tribunal, Madras) was relied by the Ld. counsel to argue that in the said case the Tribunal set aside the demand observing that goods transported by individual transporters owning vehicles without issuance of consignment notes is not subject to levy of service tax under transportation of goods by road service defined under Section 65 (105) (zzp). 7. The Ld. Counsel appeared for the appellant was fair enough to submit that in the appellant's own case for the earlier period from June 2009 to May 2010, the Tribunal had considered the very same issue of refund of service tax. Tribunal had dismissed the appeal vide Final Order No.40007/2019 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall not be required to issue the consignment note. Explanation. - For the purposes of this rule and the second proviso to rule 4A, "consignment note" means a document, issued by a goods transport agency against the receipt of goods for the purpose of transport of goods by road in a goods carriage, which is serially numbered, and contains the names of the consignor and consignee, registration number of the goods carriage in which the goods are transported, details of the goods transported, details of the place of origin and destination, person liable for paying service tax whether consignor, consignee or the goods transport agency. 11. The strong contention put forward by the appellant is that M/s. Shiva Cargo Movers Ltd. who had transported their goods is not liable to pay service tax on transport charges as they are not Goods Transport Agency. For this reason the appellant who is the service recipient is not liable to pay service tax under reverse charge mechanism. The refund claim is filed by the appellant contending that they had paid the service tax under protest even though they are not liable to pay the service tax. The Tribunal in the appellant's own case for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is the claim of the Learned Counsel for the appellant that the trucks are hired by themselves and the 'iron ore' for export are loaded on to them for carrying to the port of export. He contends that there is no agency function involved as the goods are loaded on vehicles hired by them and hence there is no third party involved. He further contends, after taking us through the narrative of the history of taxation of 'goods transport' under Finance Act, 1994, that it was not the intent of the Government to tax 'goods transport operators' but that the tax leviability was to devolve on agencies that perform the function of acceptance of cargo for transport under consignment notes. 9. From the above, it is clear that the tax liability will arise only upon the goods transport agency I,e. one who undertakes responsibility, in full legal sense, for the cargo despatched by it and an individual truck operator who does not accept such responsibility, is merely performing the activity of transport of goods which is not the subject of the tax. It is of course, necessary to point out from the history of the tax on this service, that the blanket intent to tax the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
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