2012 (5) TMI 291 - AT - Service Tax

Whether service tax is leviable on the freight paid by the appellants to truck owners for carriage of tobacco from auction-yard to godowns - assessees cannot be held to have availed GTA service. In this connection, reliance is placed on a series of judgments of this Tribunal viz. Commissioner Vs. Kanaka Durga Agro Oil Products Pvt. Ltd. 2009 (15) S.T.R. 399, Salem Co-operative Sugar Mills (2010 - TMI - 77283 - CESTAT, CHENNAI - Service Tax) decision in favour of appellants

Summary

Issues Involved:
- Whether service tax is leviable under the head 'Business Auxiliary Service' for job work charges related to processing of tobacco.
- Whether service tax is leviable on freight paid to truck owners for transporting tobacco.
- Exigibility of service tax on commission paid to foreign agents by M/s. DTE Exports Pvt. Ltd. before 18.04.2006.

Analysis:

Issue I:
The appellants sought waiver of pre-deposit and stay of recovery for service tax and penalty amounts. The primary contention was the applicability of Notification No. 14/2004 ST for processing of tobacco under 'Business Auxiliary Service'. The appellants relied on Circular No. 143/12/2011-ST for exemption from service tax. The Tribunal acknowledged the arguments and granted relief based on the circular and Notification, holding in favor of the appellants.

Issue II:
Regarding service tax on freight paid to truck owners for transporting tobacco, the appellants argued that the truck owners did not qualify as goods transport agents under Section 65 of the Finance Act. Citing precedents like Commissioner Vs. Kanaka Durga Agro Oil Products Pvt. Ltd., the appellants contended against availing GTA service. The Tribunal considered the cited judgments and agreed with the appellants, leading to a favorable decision for them.

Issue III:
In the case of M/s. DTE Exports Pvt. Ltd., a minor portion of the demand fell under 'Renting of Immovable Property'. The amount was nominal, and both parties did not emphasize it. Another issue was the exigibility of service tax on commission paid to foreign agents before 18.04.2006. After deliberation, the Tribunal ruled in favor of the assessees on these minor issues as well.

In conclusion, the Tribunal granted waiver of pre-deposit and stay of recovery for the amounts adjudged against the appellants, considering the arguments presented and the legal provisions applicable to the respective issues.