2024 (8) TMI 846 - AT - Central Excise

Classification of service - GTA Service under reverse charge mechanism or not - payment towards freight charges for the transportation of goods - HELD THAT - The appellant have received transportation service in respect of supply of building material and in some of the cases the transporter itself has raised the bill for supply of material and not for transportation and in all the cases of transportation, there is no consignment note issued by the transporter. In one case there is supply of tangible goods which cannot be regarded as GTA service. As regards the major demand categorized under GTA service which are liable for service tax or otherwise, in number of judgments it has been held that even though there is transportation service but if no consignment note has been issued, the said service cannot be classified as GTA service. It was held in the case of M/S. VEDANTA LIMITED VERSUS COMMISSIONER OF GST AND CENTRAL EXCISE TIRUNELVELI COMMISSIONERATE, 2023 (9) TMI 1063 - CESTAT CHENNAI where it was held that '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.' It was held in the case of AIMS Industries vs. CCE 2024 (1) TMI 721 - CESTAT AHMEDABAD where it was held that 'Thus, it is categorically held that in case transportation made by vehicle operator (in the present case tractor trolley owners) and no consignment note was issued, the service cannot be held as goods transport agency service liable to Service Tax. Therefore, the impugned order is not sustainable.' Thus, it is settled that as per facts involved in the present case, applying the ratio of the above judgments, the demand under GTA service is not sustainable - the impugned order is set-aside and appeal is allowed.

Issues Involved:
1. Classification of transportation service under Goods Transport Agency (GTA) service.
2. Issuance of consignment notes.
3. Inclusion of transactions involving supply of tangible goods and materials in the GTA service.
4. Interpretation of statutory provisions.
5. Applicability of service tax under reverse charge mechanism.
6. Validity of demand on the grounds of time-bar.

Detailed Analysis:

1. Classification of Transportation Service under GTA Service:
The appellant, a partnership firm engaged in providing taxable services under the category of 'Construction of Commercial or Industrial Building and Civil Structure,' was audited for the financial years 2010-11 to 2012-13. It was observed that the appellant had paid freight charges for the transportation of goods but did not pay service tax. A show cause notice was issued, proposing a demand of service tax under the category of GTA Service under the reverse charge mechanism. The key contention was whether the transportation service could be classified under GTA service without the issuance of consignment notes.

2. Issuance of Consignment Notes:
The appellant argued that no consignment notes were issued by the transporters, which is essential for classifying the service under GTA. The Tribunal relied on several judgments, including Vedanta Limited vs. CGST, Carris Pipes and Tubes Pvt. Ltd., and South Eastern Coalfields Ltd., which held that without the issuance of consignment notes, the service cannot be classified as GTA service. The Tribunal emphasized that the definition under Section 65(50b) of the Finance Act, 1994, and Rule 4B of the Service Tax Rules, 1994, mandate the issuance of consignment notes for the levy of service tax under GTA.

3. Inclusion of Transactions Involving Supply of Tangible Goods and Materials in the GTA Service:
The appellant contended that some transactions involved the supply of tangible goods and materials such as kapchi and white sand, which should be considered as the sale of goods rather than transportation services. The Tribunal acknowledged that these transactions could not be classified under GTA service and should not be included in the service tax demand.

4. Interpretation of Statutory Provisions:
The dispute arose from the interpretation of statutory provisions regarding the classification of transportation services under GTA. The Tribunal referred to multiple judgments to clarify that the issuance of consignment notes is a non-derogable requirement for a service to be classified as GTA. In the absence of consignment notes, the transportation service cannot be subjected to service tax under GTA.

5. Applicability of Service Tax under Reverse Charge Mechanism:
The Tribunal examined whether the appellant, as the recipient of transportation services, was liable to pay service tax under the reverse charge mechanism. It was concluded that since no consignment notes were issued, the transportation service did not qualify as GTA, and hence, the appellant was not liable to pay service tax under the reverse charge mechanism.

6. Validity of Demand on the Grounds of Time-Bar:
The appellant argued that the demand was time-barred as the dispute arose from the interpretation of statutory provisions. The Tribunal noted that the situation was revenue neutral and that several audits had been conducted without raising objections. Consequently, the invocation of the extended period for issuing the show cause notice was deemed unsustainable. The Tribunal held that the demand was not maintainable on the grounds of limitation.

Conclusion:
The Tribunal set aside the impugned order, holding that the demand of service tax could not be sustained due to the absence of consignment notes and the misclassification of transactions involving the sale of goods. The appeal was allowed with consequential relief.

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