2023 (9) TMI 1063 - AT - Service Tax

Non-payment of Service tax - GTA Service or not - transportation charges of the export cargo - consignment note not raised for the service - period from August 2006 to December 2010 - Time limitation - HELD THAT - As per the definition under 60(50b) of the Finance Act, 1994, only if the service provider in relation to the transportation of goods by road issues a consignment note, the levy of Service Tax would be attracted to the carriage of goods by the goods transport agency. The Service Tax Rules under Section 2(1)(b), provides that the recipient of service is liable to pay the Service Tax - In the present case, the demand has been raised upon the appellant alleging that they are the recipient of services of goods transport agency services provided by the CHA. Admittedly, the appellant has not been issued a consignment note. The Tribunal in the case of Carris Pipes and Tubes Pvt. Ltd. 2018 (7) TMI 24 - CESTAT CHENNAI had occasion to consider the similar issue has observed In cases where admittedly no consignment notes have been issued, the said transporter cannot be called Goods Transport Agency - In the said case, the Tribunal followed the decision in South Eastern Coalfields Ltd. Vs. Commissioner of Central Excise 2016 (8) TMI 677 - CESTAT NEW DELHI , and held that the demand cannot be sustained if no consignment note has been issued to the service recipient. Thus, the demand of Service Tax cannot be sustained. The issue on merits is answered in favour of assessee. Time Limitation - HELD THAT - The situation is entirely a revenue neutral as well as the fact that several audits have been conducted raising the objection of non-payment of Service Tax under GTA services. The Department had full knowledge about the issue and still the Show Cause Notice has been issued invoking the extended period which in our view cannot be sustained. The appellant succeeds on the ground of limitation also. The impugned order is set aside. The appeal is allowed.

Summary

Issues Involved:
1. Liability to pay Service Tax under Goods Transport Agency (GTA) services.
2. Requirement of consignment note issuance for GTA services.
3. Applicability of extended period for demand.

Summary:

1. Liability to Pay Service Tax under GTA Services:
The main issue was whether the appellant was liable to pay Service Tax under GTA services. The appellant argued that Custom House Agents engaged for transportation did not issue consignment notes, which is a requisite for the service to fall under GTA. The Tribunal noted that as per Section 65(50b) of the Finance Act, 1994, and Rule 2(1)(d) of the Service Tax Rules, 1994, the issuance of a consignment note is mandatory for a service to be classified as GTA services.

2. Requirement of Consignment Note Issuance:
The Tribunal examined whether the absence of consignment notes exempted the appellant from Service Tax liability. It referred to previous decisions, including Carris Pipes and Tubes Pvt. Ltd. and SK Cars India (P) Ltd., which established that without consignment notes, the service does not fall under GTA. The Tribunal reiterated that an invoice alone does not substitute a consignment note, which carries specific legal responsibilities.

3. Applicability of Extended Period for Demand:
The appellant also argued against the applicability of the extended period for demand, citing revenue neutrality and prior audits that had already raised the issue. The Tribunal agreed, noting that the Department had full knowledge of the issue and still issued the Show Cause Notice invoking the extended period, which was deemed unsustainable.

Conclusion:
The Tribunal concluded that the demand for Service Tax could not be sustained due to the absence of consignment notes, aligning with previous judgments. Additionally, the demand invoking the extended period was set aside due to revenue neutrality and prior knowledge by the Department. The appeal was allowed with consequential relief.