2011 (9) TMI 334 - AT - Service Tax

Notification No.35/04-ST - GTA services - dispute relates to the fact of evidence in support of the claim of exemption and deposit of service tax by the transporter - lower authority has denied the benefit of Notification No.35/04-ST, dated 3.12.2004 on the ground that the appellants have not produced any evidence to show that the freight amount was below Rs.750/- per consignment/billty and Rs.1500/- per truck load - Held that set aside the impugned order and remand the matter to the original adjudicating authority for verification - Stay petition and the appeal get disposed off

Summary

Issues:
1. Service tax demand and penalty imposition under Sections 76 and 78 of the Finance Act, 1994.
2. Denial of benefit of Notification No.35/04-ST regarding GTA services.
3. Evidence submission regarding exemption claim and service tax deposit by transporter.

Analysis:
1. The judgment addresses the service tax demand issue where the appellant had already deposited a partial amount. The tribunal considered the deposited amount as sufficient, waiving the pre-deposit condition for the balance service tax and penalty. Due to the issue's narrow scope requiring factual verification, both parties consented to proceed with the appeal's decision without further delay.

2. Regarding the denial of benefit under Notification No.35/04-ST for GTA services, the lower authority rejected the appellant's claim due to insufficient evidence showing the freight amount met the specified criteria. The tribunal noted the appellant's argument about the deposit of service tax by the transporter for other GTA services, but the lower authority's findings were upheld as the appellant failed to provide contrary evidence.

3. The advocate for the appellants highlighted that evidence supporting the exemption claim and service tax deposit by the transporter was submitted to the adjudicating authority but not considered. As the dispute centered on the lack of evidence, the tribunal decided to set aside the order and remand the case for the original authority to verify the factual claims. The appellants were instructed to provide all necessary evidence for examination and verification, ensuring a proper decision based on the verified facts.

In conclusion, the stay petition and the appeal were disposed of by setting aside the previous order and remanding the matter for further verification and decision based on the evidences to be provided by the appellants.