2011 (4) TMI 729 - AT - Service Tax

Quantification of liability as the same has been worked out on the total amount instead of 25% of the gross amount as per exemption Notification No.32/04 ST dated 03.12.2004 - Notification exempts service tax on 75% of the gross amount charged in respect of taxable service provided of goods transport agency to a customer provided that the credit of duty paid on inputs or capital goods used in provided such taxable service has not been taken and the goods transport agency has not availed the benefit under Notification No.12/03 ST dated 20.06.2003 - appellant have produced copies of confirmation from their transporters about non availment of cenvat credit on inputs/ capital goods and also about non-availment of benefit under Notification - Commissioner rightly worked out the liability that has arisen on the basis of evidence produced from the transporter - no legal infirmity with the order passed by the ld. Commissioner (Appeals).

Issues:
1. Application of exemption Notification No.32/04 ST dated 03.12.2004.
2. Denial of benefit under Notification No.32/04 ST dated 03.12.2004.
3. Confirmation from transporters about non-availment of cenvat credit.
4. Liability calculation based on evidence produced from transporter.

Analysis:
1. The judgment pertains to the application of exemption Notification No.32/04 ST dated 03.12.2004. The appellant argued that the liability should be calculated as 25% of the gross amount as per the said notification. The Commissioner (Appeals) examined the issue extensively and found that the appellant failed to provide evidence to support the conditions of the notification. However, the appellant produced confirmation from their transporters regarding non-availment of cenvat credit on inputs/capital goods and benefit under the notification. The Commissioner agreed with this contention and calculated the liability accordingly for two different periods, as detailed in the appellate order.

2. The denial of benefit under Notification No.32/04 ST dated 03.12.2004 was a crucial aspect of the case. The adjudicating authority had initially denied this benefit due to the appellant's failure to provide evidence supporting the conditions of the notification. However, the Commissioner (Appeals) considered the confirmation received from the transporters about the non-availment of cenvat credit and granted the benefit of the notification. This decision was based on a thorough examination of the evidence presented by the appellant, leading to the calculation of the liability in accordance with the notification.

3. A significant point in the judgment was the confirmation obtained from the transporters regarding the non-availment of cenvat credit on inputs or capital goods. This confirmation played a crucial role in establishing the appellant's eligibility for the benefit under Notification No.32/04 ST dated 03.12.2004. By providing this confirmation, the appellant was able to demonstrate compliance with the conditions of the notification, which ultimately influenced the calculation of the liability by the Commissioner (Appeals).

4. The calculation of liability based on the evidence produced from the transporter was a key factor in the judgment. The Commissioner (Appeals) meticulously worked out the liability for two different periods by considering the evidence presented by the appellant, particularly the confirmation from the transporters. This detailed calculation process ensured that the liability was accurately determined in line with the provisions of Notification No.32/04 ST dated 03.12.2004. The thorough examination of the evidence led to the conclusion that the order passed by the Commissioner was legally sound, resulting in the dismissal of both the stay application and the appeal by the Tribunal.

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