2011 (5) TMI 377 - AT - Service Tax

Demand - GTA services - notification No.1/2009/ST, dated 05.01.2009 and also circular No104/7/2008/ST, dated 06.08.2008 - all intermediate transactions may not necessary be characterized as original transaction unless and until both transactions are integrally and indispensably related or connected to each other - Making thorough verification of chain of evidence, consignment notes, origin and destination of the transaction, understanding of consignor and the consignee, contract of GTA service provider with intermediary, the authority below shall be able to come to a rational conclusion - Appeal is allowed partly

Summary

Issues:
Intermediary GTA service tax liability, interpretation of notification and circulars, applicability of subsequent developments, nexus of intermediary service with original GTA service, examination of chain of evidence, avoidance of double taxation.

Intermediary GTA Service Tax Liability:
The appellant argued that the service provided as an intermediary for GTA services did not change the character of the original service. The intermediary service was deemed to be part of the original GTA service, and no new or independent service was provided. The authorities levied tax on the appellant without properly appreciating the nature of the intermediary service. The appellant contended that when the principal GTA service is taxable, the tax demand on the appellant does not arise.

Interpretation of Notification and Circulars:
The appellant relied on notification No.1/2009/ST and circular No.104/7/2008/ST to support their argument that intermediary transactions should not be subject to double taxation when the intermediary is not the recipient of the service. The appellant highlighted that the adjudicating authority did not have the advantage of knowing the applicable law at the time of passing the order, as the notification and circulars were issued subsequently.

Applicability of Subsequent Developments:
The appellant emphasized that subsequent developments in the law should not bring the transit service provided by the intermediary under the tax net. They pointed out that similar subsequent developments were recognized by the authority in a previous order involving the same appellant, indicating that no levy should be imposed on the appellant.

Nexus of Intermediary Service with Original GTA Service:
The Tribunal analyzed the nexus of the intermediary service with the original GTA service, emphasizing that if the intermediary service is subservient to the original transaction and does not change the character of the service, it should not be considered a separate transaction. The nature, character, and terms of the contract between the parties play a crucial role in determining the tax incidence of the intermediary transaction.

Examination of Chain of Evidence:
The Tribunal highlighted the importance of a thorough examination of the chain of evidence, including consignment notes, origin and destination of the transaction, and the contractual terms between the parties. The authority was directed to verify the true nature of the transactions and ensure that the transaction has been taxed at the appropriate stage in the appropriate hands to avoid double taxation.

Avoidance of Double Taxation:
In line with the legislative intention to prevent double taxation of the same transaction, the Tribunal remanded the matter to the original authority for a fresh examination. The original authority was instructed to conduct a detailed analysis, grant a fair opportunity of hearing to the appellant, and pass a reasoned order. The appellant was allowed to argue all legal issues and present evidence in defense during the fresh proceedings.