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2016 (1) TMI 889 - AT - Service TaxGTA service - Denial of benefit of 75% exemption in respect of GTA services for want of an endorsement on the consignment note to the effect of non availment of Cenvat credit and Notification No. 12/2003-ST on consignment note of the transporter. - exemption notification No. 32/2004-ST - Held that - We find that in the various judgments, issue in question has been settled that the assessee where liable to pay service tax could not be insisted upon to produce the proof of non availment of Cenvat credit and Notification No. 12/2003 which is not requirement of notification. We therefore set aside the demand of service tax, interest and penalties confirmed in the impugned order. The appeal of the assessee is allowed with consequential relief - Decided in favor of assessee.
Issues Involved:
1. Compliance with Notification No. 32/2004-ST conditions. 2. Acceptance of transporters' declarations. 3. Imposition of penalty under Section 76 and Section 78 of the Finance Act. Issue-wise Detailed Analysis: 1. Compliance with Notification No. 32/2004-ST Conditions: The primary issue was whether the assessee complied with the conditions of Notification No. 32/2004-ST, which required that the Goods Transport Agency (GTA) should not avail Cenvat credit on inputs or capital goods and should not benefit from Notification No. 12/2003-ST. The assessee argued that they had submitted declarations from almost all transporters certifying compliance with these conditions. The Adjudicating Authority accepted these declarations for the period from 1/1/2005 to 27/7/2005 but not thereafter, based on a Board Circular dated 21/8/2008, which mandated that such declarations be noted on the consignment note post-27/7/2005. The Tribunal found that the notification itself did not prescribe the need for such declarations to be on consignment notes and that the procedural requirements set by the Board Circular could not override the notification's conditions. The Tribunal held that the onus was on the Revenue to prove non-compliance by the GTA, which they failed to do. Therefore, the Tribunal accepted the declarations provided by the assessee and held that the exemption under Notification No. 32/2004-ST was admissible for the entire period. 2. Acceptance of Transporters' Declarations: The Tribunal observed that the declarations provided by the transporters were sufficient to meet the conditions of the notification, whether made on consignment notes or separately. The Tribunal emphasized that the objective was to ensure that the GTA had not availed Cenvat credit or Notification No. 12/2003-ST benefits, and this could be confirmed through certificates or affidavits. The Tribunal cited several judgments supporting the view that procedural requirements should not deny substantive benefits and that substantial compliance with the notification conditions was sufficient. 3. Imposition of Penalty under Section 76 and Section 78 of the Finance Act: The Revenue contended that penalties under both Section 76 and Section 78 should be imposed, citing judgments that supported the imposition of distinct penalties for separate provisions. However, since the Tribunal set aside the service tax demand, the basis for imposing penalties under Section 76 and Section 78 was nullified. Consequently, the Tribunal dismissed the Revenue's appeal for penalties. Conclusion: The Tribunal allowed the assessee's appeal, granting them the exemption under Notification No. 32/2004-ST for the entire period and setting aside the service tax demand, interest, and penalties. The Tribunal dismissed the Revenue's appeal for imposing penalties under Section 76 and Section 78, as the primary demand was not upheld. The judgment emphasized that procedural lapses should not deny substantive rights when the core conditions of the notification are met.
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