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TMI Blog2024 (10) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... nd equal amount of tax as penalty under Section 78 of the Finance Act, 1994 by way of the Order-in-Original: 02/S.Tax/Commr/2016 dated 12.01.2016. 2. Brief facts of the case are that the Appellant has thermal power generation plants at various locations in India. The Appellant uses coal for generation of steam in these power plants. Due to burning of coal, ash gets generated which requires disposal as per environmental norms. 2.1. Disposal of ash involves various activities like excavation of ash from ash ponds, loading into trucks, transporting the same from plant to dumping grounds, liasoning with various Government Agencies for obtaining permission to transport and disposal of ash, etc. 2.2. The Appellant enters into contract with ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntaining the details like quantity of goods, vehicle no., date of transportation, place of disposal etc., has been issued by the Appellant itself. The transporters only raise bills on monthly basis on the Appellant based on the respective challans issued to them during transportation. Thus, the challan / weighment slip issued by the Appellant cannot be construed as a 'consignment note' as the ingredients of Rule 4B of the Service Tax Rules are not satisfied. b) The issue is no longer res integra; that once it is established that there is no document issued by the transporter in the nature of 'consignment note', the transportation activity cannot be termed as 'Goods Transport Agency service received by the Appellant. An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation of 'goods' by the service provider. The following decisions were relied upon in support: - * Gujarat State Fertilizers & Chemicals Limited vs. CCE, Vadodara [2015 (37) STR 1076 (Tri-Ahmd.)] * Panoli Enviro Technology Ltd. vs. CCE & ST Surat-II, [2023 (8) TMI 122 -CESTAT Ahmedabad] * ONGC Ltd. vs. CCE & ST, Tiruchirapalli [2018 (7) TMI 1671-CESTAT Chennai] 4.3. It is further submitted that extended period of limitation is not invokable as there is no suppression of facts, and the Department was in knowledge of the entire facts. It is pointed out that the appellant had specifically requested for clarification from the Department vide its letter dated 06.07.2009 on the taxability of the transaction under goods transport a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the consignor and consignee are one and the same and transporter of goods is not issuing any consignment note. In such a situation, the original authority quoting "letter and spirit of the statute" observed that by not issuing consignment note the transporter had violated the provision of Rule 4B of the Service Tax Rules, 1994. We find that the reasoning followed by ld. Commissioner is devoid of merit. It is relevant to examine the concerned legal provisions : Section 65(105)(zzp) of the Act defines the taxable service as under : (zzp) to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage; Section 65(50b) of the Act defines 'goods transport agency' as under : (50b) "goods transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of goods and issues consignment note which should have particulars as prescribed in Explanation to Rule 4B. 8. In cases where admittedly no consignment notes have been issued, the said transporter cannot be called Goods Transport Agency. In Birla Ready-mix - 2013 (30) S.T.R. 99 (Tri.-Del.), it was held that the provisions of the Act has to prevail and the definition at Section 65(50b) has to be understood independent of Rule 4B of the Service Tax Rules, 1994 to decide whether the person concerned is a goods transport agency. 9. In Northern Coalfields Limited v. C.C.E., Bhopal vide Final Order No. 53313/2015, dated 29-10-2015, an identical situation was examined by the Tribunal. There also, the payment slips were generated by the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice cannot be sustained against the appellant. The ratio laid down by the Tribunal in various decisions discussed above are to be followed as there is no reason to differ with the same. We also note that appellant is correct regarding their contention on the issue of interpretation with reference to time-bar of the demand also. 11. In view of the above, we find that the impugned order is not sustainable and accordingly set aside the same. The appeal is allowed." 6.2. In this case, we observe that the appellant has not issued any 'consignment note'. Once it is established that there is no document issued by the transporter in the nature of 'consignment note', the transportation activity cannot be termed as 'Goods Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X
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