2010 (1) TMI 605 - AT - Service Tax

Waiver of pre-deposit GTA service - yarn from the Nepalese suppliers are on FOR basis under which the price of the yarn includes the expenses for transportation of the goods handling which are incurred by the supplier and charged from the appellants Held that - appellants are not liable for payment of the service tax on the GTA service received by them - pre-deposit of the service tax demands, interest and penalty is waived - stay applications are allowed

Summary

Issues:
1. Liability of service tax on freight charges for GTA service allegedly received by the appellants.
2. Imposition of penalties under Section 76 and 78 of the Finance Act, 1994.

Analysis:
1. The appellants, who are manufacturers of grey fabrics, purchased yarn from suppliers in Nepal. The suppliers arranged transportation of the yarn to the appellant factories and paid the freight to the transporter. The Department contended that the appellants received GTA service and were liable to pay service tax on the freight charges shown in the supplier's invoices. Demand notices were issued for recovery of service tax, interest, and penalties. The Assistant Commissioner confirmed the demands and imposed penalties on the appellants. Various appeals were filed against these orders.

2. The Commissioner (Appeals) upheld the Assistant Commissioner's orders, leading to further appeals by the appellants. The appellants argued that they were not liable for service tax as the transportation was arranged and paid for by the suppliers, who were the actual recipients of the GTA service. They contended that since they did not directly pay the transporters, they should not be considered the recipients of the service. On the other hand, the Departmental Representatives argued that the appellants reimbursed the transportation costs to the suppliers, making them the recipients of the service. They claimed that the conditions for charging service tax under the GTA service category were met.

3. After considering the submissions from both sides and examining the records, it was observed that the suppliers arranged and paid for the transport of goods, including handling expenses, which were included in the price of the yarn paid by the appellants. Since the suppliers engaged the transporters, it was prima facie concluded that the suppliers were the recipients of the GTA service, not the appellants. Therefore, the appellants were not held liable for the service tax on the GTA service received. Consequently, the pre-deposit of service tax demands, interest, and penalties was waived, and the stay applications were allowed.

This judgment highlights the importance of analyzing the actual recipient of services for determining liability under service tax laws and emphasizes the need for a clear understanding of the transactional flow to establish the correct tax liability.