2009 (7) TMI 1088 - Commissioner - Service Tax

Goods Transport Agency Service - Notification No. 35/2004-S.T., dated 3-12-2004 - whether the appellant is liable to pay Service tax in terms of Rule 2(i)(v) of the Service Tax Rules 1994 towards services received from M/s. Gati Ltd., M/s. NECC Logistics Ltd., M/s. Speedage Transport Agencies, M/s. Rahul Cargo and M/s. Ghatge Patil Transports?

Summary

Issues:
- Appellant availed services from multiple service providers registered under different categories
- Allegation of failure to discharge Service tax and subsequent demand notice
- Dispute regarding liability to pay Service tax as a service receiver
- Appellant's contentions against the order and imposition of penalty
- Applicability of Notification No. 35/2004-S.T.
- Interpretation of Rule 2(i)(v) of the Service Tax Rules, 1994
- Department's insistence on the appellant to pay Service tax despite service providers already paying

Analysis:
The appeal involved a case where the appellant, registered for Service tax on transportation of goods by road, received services from various providers under different categories. The dispute arose when the appellant was alleged to have failed to discharge Service tax despite service providers paying and a demand notice was issued. The appellant contended that since the service providers had already paid the tax, there was no need for the appellant to pay again. The appellant relied on legal precedents to support their argument, emphasizing that the Department had accepted the classification and payments made by the service providers, making the appellant not liable to pay again.

The main issue revolved around the interpretation of Rule 2(i)(v) of the Service Tax Rules, 1994, and the applicability of Notification No. 35/2004-S.T. The Assistant Commissioner held the appellant liable to pay Service tax, interest, and penalty despite the service providers already paying the tax. However, the appellant argued that demanding tax from them again would amount to double taxation and cited legal decisions to support their stance. The appellant highlighted that the Department had accepted the classification and payments by the service providers, making it impermissible to change the classification at the receiver's end.

After a thorough review of the case records and citations, the Commissioner found merit in the appellant's arguments. The Commissioner agreed that the appellant should not be held liable to pay Service tax again, especially when the service providers had already paid the tax. The Commissioner referenced legal decisions that supported the appellant's position, emphasizing that once tax was paid on services, it was not open for the Department to demand it again from the appellant. Consequently, the Commissioner allowed the appeal, setting aside the impugned Order-In-Original passed by the Assistant Commissioner.