2009 (11) TMI 545 - AT - Service Tax

Waiver of pre-deposit GTA assessee incurred freight for inward, transportation of materials and did not pay Service tax under GTA services - truck operator involved was a goods transport agency and was not operating its own trucks Held that - Tribunal held that individual truck owner not liable to service tax under GTA service - appellants have made out a prima facie case for waiver

Summary

Issues:
Applicability of Service tax under GTA services for inward transportation of materials. Interpretation of Notification No. 34/04-S.T. regarding exemption based on freight amount.

Analysis:
The appellant, a company, was held liable for Service tax under GTA services for inward transportation of materials as a recipient of goods transport agency services. The lower authorities demanded Service tax, interest, and penalties under Sections 76 & 78 of the Finance Act, 1994. The Commissioner (Appeals) upheld the demand and penalties imposed. The appellant contended that the transporter was not a goods transport agency, and therefore, Service tax liability did not apply under the GTA category. The consignments transported by the transporter were liquid styrene monomer in tankers from the port to the appellant's premises.

The appellant argued that the freight incurred for each consignment was below Rs. 1500, exempting them from Service tax liability as per Notification No. 34/04-S.T. dated 3-12-2004. The Departmental Representative (DR) countered, stating that the transporter engaged trucks owned by others and was a GTA, making the Service tax demand valid. It was also asserted that since individual consignments incurred freight above Rs. 750, the exemption under the notification did not apply.

Upon review, the Tribunal found that there was no conclusive finding that the truck operator was a goods transport agency and not operating its trucks. Citing a precedent, the Tribunal noted that services provided by individual truck owners might not attract Service tax under the GTA category. The Tribunal observed that the appellant was prima facie eligible for exemption under Notification No. 34/04-S.T. as the freight for each consignment was consistently below Rs. 1500. Consequently, the Tribunal ordered a complete waiver of the adjudged dues pending the appeal decision, considering the appellant's prima facie case for waiver.

In conclusion, the Tribunal's decision revolved around the interpretation of the Notification No. 34/04-S.T. exemption criteria based on the freight amount for consignments. The case highlighted the importance of establishing whether a transporter qualifies as a goods transport agency and the relevance of meeting the exemption conditions outlined in the notification to determine Service tax liability for transportation services.