9911796707
TMI Blog2025 (5) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant has not paid appropriate service tax on Reverse Charge Mechanism for the GTA services availed by them. Accordingly, show-cause notice was issued and adjudicating authority as per impugned orders confirmed the demand under Reverse Charge Mechanism considering the service availed by the appellant as Transport of Goods by Road. Aggrieved by said order, present appeals are filed. 2. When the appeals came up for hearing, the learned counsel for the appellant drew our attention to the definition of GTA service and submits that the activity is not falling under the above category since appellant is not involved in transport of goods by road and the service provider has not issued any consignment note to consider the activity as falling under GTA Service. Learned counsel also drew our attention to the contract entered by the appellant and submits that the vehicle shall be used only to carry the appellant's goods and the contractor shall at no point of time carry or permit to carry any other goods in the vehicle. Appellant shall have the right to stop the transit of the consignment entrusted to the contractor and to take delivery or possession of same at any time against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nance Act, 1994 as quoted above leads to a situation where the definition is dependent on a requirement laid down using the defined term itself and leads to difficulties in proper understanding of the matter. Since the provision of Act has to prevail we understand the definition at Section 65(50b) has to be understood independent of Rule 4B of Service Tax Rules, 1994 to decide whether the person concerned is a goods transport agency by adopting ordinary meaning of consignment note and then apply Rule 4B of Service Tax Rules, if the person concerned is found to be a goods transport agency. 9. We further note that service tax is levied on the services of a "Goods Transport Agency" and not on services of a "Goods Transport Operator". The latter term was used in Finance Act, 1994 during the period Nov., 1997 to June, 1998 and the former expression is being used now. So it is to be understood that these two expressions refer to different types of persons. The mere fact that the operator is doing activity of transportation cannot make the operator a "Goods Transport Agency". So the operators in this case cannot be considered as "Goods Transport Agencies". We are not in agreement with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since it is covered in the "Negative List‟ Entry under Section 66D (p)(i) of the Finance Act, 1994." 3. Learned Counsel also submits that considering the finding in the said order, the consideration received by contractors / truck owners from appellant is only for supply of vehicles as per the contract and only the activity of transportation of goods was undertaken by appellant. Accordingly, the service provided by the truck owners to appellant cannot be considered as covered under "Negative List" of service to confirm demand of service tax from the appellant under Reverse Charge Mechanism. Learned counsel further submits that the above decision of the Tribunal was upheld by Hon'ble Supreme Court reported in 2024 (388) ELT 679 (SC). This issue was also considered by Dinshaws Dairy Foods Ltd. vs. CCE, Nagpur: 2018 (13) GTL 170 (Tri.-Mumbai) wherein it was held that when Appellant has hired the vehicles on the kilometres basis and monthly bills are raised on the basis of Kilometres travelled by the Vans, the vehicles are hired on monthly basis and the charges are not based upon destination but on kms basis. It cannot be said that the services involved are of Goods Transport A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal in the above matter held that: "6.3 After hearing both sides, it appears that the main plea of the assessees on this issue is that no consignment notes have been raised. They have relied upon the ratio in the case of South Eastern Coal Fields Ltd. v. CCE, Raipur [2016 (41) S.T.R. 636 (Tri.-Del.)] where issue of consignment note has been held as a non-derogable ingredient for falling under GTA. But the fact remains that consignment notes can be issued in any form, as seen from definition of GTA in Section 65(50)(b) of the Finance Act, 1994; "goods transport agency" means any person who provides service in relation to transport of goods and issues consignment note, by whatever name called (emphasis added). In the Appeal No. ST/341/2011, sample vouchers/invoices have been made available, where the truck number, amount and load have been described. In the instant cases, the assessees are the service recipients for which they are paying the freight charges. When it is so, then we are of the view that the Department has rightly applied GTA and demanded the service tax for the reason that without an accompanying paper/document, goods cannot be received without which is the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. The contract was entered on a monthly basis and as evident from the bill issued by the truck owners, fixed charge of Rs.40,000/- is charged and same cannot be considered as consignment note and further, there is no such averments in the show-cause notice or in the impugned order to consider such bill as consignment note. Fact being so, in the absence of any admissible evidence regarding issue of consignment note or in any other form to consider as consignment note, no presumption can be drawn that the service availed by the appellant is falling under GTA service and to confirm the demand of service tax on Reverse Charge Mechanism. 7. Heard both sides. As per the impugned order, the demand is made on the ground that the service provided by the truck owner/contractor is falling under GTA services. However, as evident from the documents relied by the appellant, consignment note is issued by the appellant himself and if the said document is considered as a consignment note as stated in the definition of GTA services, the appellant himself is to be considered as providing GTA services. As regarding the finding relied by learned AR in the matter of M.L. Agro Products Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
