2009 (1) TMI 118 - AT - Service Tax

Person liable for paying service tax - Service of Goods Transport Agency availed during the period 1-1-2005 to 31-3-2006 - appellants had received consignments of three-wheelers by road and had incurred freight for their transportation - appellants, a consignee, do not fall under any of the listed categories u/r 2(1)(d)(v,) of the Service Tax Rules, 1994 - issue is contentious - appellants have made out prima facie case against the impugned demand of service tax and penalty stay granted

Summary

Issues:
Waiver of pre-deposit and stay of recovery of service tax and penalty imposed under sections 76 and 78 of the Finance Act, 1994 for service classifiable under 'Goods Transport Agency'.

Analysis:
The case involved an application by M/s. Andal Motors seeking waiver of pre-deposit and stay of recovery of a demanded amount towards service tax under the category 'Goods Transport Agency' for the period 1-1-2005 to 31-3-2006, along with penalties imposed under sections 76 and 78 of the Finance Act, 1994. The appellants, a proprietary concern, received consignments of three-wheelers and incurred freight for their transportation from Pune to their premises. The issue arose when the original authority demanded service tax on the entire freight, denying the benefit of a notification extending abatement subject to conditions.

The appellants argued that they did not fall under any category liable to pay service tax under the 'GTA' category as consignor or consignee. The show-cause notice did not specify the category under which the appellants, as a consignee, could be classified, which was not addressed by the lower authorities. The consultant highlighted this lacuna, while the Jt. CDR contended that the consignor, being a registered manufacturer of excisable goods, was liable for paying service tax under the GTA service. The consultant argued against a broad interpretation that would require almost every buyer of goods to discharge tax under the GTA category, which, according to him, could not be the legislative intent.

Upon careful consideration, the Technical Member found substance in the appellants' argument. Rule 2(1)(d)(v) of the Service Tax Rules, 1994 lists categories of persons liable to pay service tax under the GTA service, none of which applied to the appellants as a consignee. The interpretation advanced by the CDR was deemed contentious, and the appellants made a prima facie case against the demanded service tax and penalty. Consequently, the Tribunal ordered a waiver of pre-deposit and stay of recovery of the adjudged dues pending the appeal decision.