2011 (8) TMI 240 - AT - Service Tax

Benefit of Notification No. 34/2004 ST dated 3.12.2004 - GTA services - Assessee are engaged in the manufacture of sugar and were availing services of Goods transport agency by road - Since, the appellants is not required to pay any service tax and that exemption in terms of notification No. 34/04 is available to the assessee as it was the assessee who was discharging the duty liability as service recipient and the exemption, if any, would be available to the person who is under legal obligation to discharge the tax, we find that eligibility to Notification No. 32/2004-ST cannot alter the liability of the assessee and therefore, the Appeal of Revenue is rejected - Decided in favour of assessee.

Summary

Issues:
Interpretation of Notification No. 34/2004 ST and Notification No. 32/2004 ST regarding exemption and abatement in service tax liability.

Analysis:
The judgment by the Appellate Tribunal CESTAT, New Delhi, involved two appeals, one by the assessee and the other by the revenue, both arising from the same impugned order by the Commissioner (Appeals). The case revolved around the interpretation of Notification No. 34/2004 ST and Notification No. 32/2004 ST concerning the exemption and abatement in service tax liability. The assessee, engaged in the manufacture of sugar, availed services of a Goods Transport Agency (GTA) and discharged service tax liability as the recipient of these services under Rule 2(1)(d)(v) of the Service Tax Rules, 1994.

The appellant benefited from the exemption under Notification No. 34/2004 ST, which exempted certain services provided by a goods transport agency from service tax if specific conditions were met. Additionally, the appellant availed the benefit of abatement up to 75% of the taxable service value under Notification No. 32/2004 ST. However, the revenue contended that the exemption under Notification No. 34/2004 ST was not applicable to the appellant as they were not a goods transport agency, leading to the initiation of proceedings against the appellant.

The Commissioner (Appeals) observed that the appellant was entitled to the benefit of Notification No. 34/2004 ST as the liability of service tax payment had been shifted to certain categories of persons, including the appellant. The Commissioner (Appeals) noted that the wording of both notifications indicated that the exemption applied irrespective of the person liable to pay the service tax. Consequently, the Commissioner (Appeals) ruled in favor of the assessee regarding Notification No. 34/2004 ST.

However, the appellate authority mistakenly considered Notification No. 32/2004 ST and denied the benefit of abatement under this notification to the appellant. The appellate authority reduced the penalty imposed but wrongly included Notification No. 32/2004 ST in its decision. Both parties agreed that the consideration of Notification No. 32/2004 ST was unnecessary as the appellant had already been found eligible for the benefit of Notification No. 34/2004 ST.

Ultimately, the Appellate Tribunal allowed the appeal filed by the appellant, setting aside the confirmation of demand and penalty. In the revenue's appeal, it was held that the appellant was not required to pay any service tax, and the eligibility for Notification No. 32/2004 ST did not alter the appellant's liability. Therefore, the revenue's appeal was rejected, affirming the availability of the exemption under Notification No. 34/2004 ST to the appellant. Both appeals were disposed of accordingly by the Tribunal.