2018 (11) TMI 1290 - AT - Service Tax

Short payment of Service tax - wrongful availment of benefit of 75% abatement on the gross taxable value under Notification No. 32/2004-ST dated 13/12/2004 and Notification No. 01/2006-ST dated 01/03/2006 - period of dispute was from April 2006 to September 2006. Held that - In the present case, the appellant is discharging Service Tax under the Reverse Charge Mechanism, being a recipient of service. The Respondent-Assessee has provided declaration as received from the Goods Transport Agency issued by them on their Letter Head. The Adjudicating Authority discarded the declarations on the ground that the declaration was obtained on the letterhead and not on the body of each consignment note. The issue is no more res-integra in-view of the various decisions of the Tribunal and accordingly, the benefit of the exemption notification cannot be denied to the assessee - In absence of any particular format prescribed under the respective notification, the Department s insistence for declaration on each consignment note for allowing the abatement under the notification is unsustainable in the eyes of law. The declarations filed by the Goods Transport Agency (GTA) on their letter head certifying that they have not availed Cenvat Credit on inputs or capital goods in availing the benefit under Notification No. 12/2003-ST, should have been accepted by the Department in extending the benefit Notification No. 32/2004-ST and 01/2006-ST. Appeal dismissed - decided against Revenue.

Summary

Issues:
Appeal against Order-in-Appeal No. 16/PAT/C.Ex/Appeal/2010 dated 18/02/2010 - Short payment of Service Tax due to availing 75% abatement on gross taxable value - Failure to produce proper consignment notes - Confirmation of demand of Service Tax - Imposition of penalty under Section 76 of the Finance Act, 1994 - Appeal allowed by Commissioner (Appeals) - Dispute over compliance with declaration requirements for abatement under Notification No. 32/2004-ST.

Detailed Analysis:

1. Compliance with Declaration Requirements:
The case involved a dispute regarding the compliance with declaration requirements for availing the abatement of 75% under Notification No. 32/2004-ST. The Revenue alleged that the assessee failed to produce proper consignment notes containing the mandatory declaration stipulated by the Board's Circular. The Adjudicating Authority confirmed the demand of Service Tax, interest, and penalty, which was appealed by the assessee and allowed by the Commissioner (Appeals).

2. Contentions of the Revenue:
The Revenue argued that the general declaration from the Goods Transport Agency (GTA) regarding non-availment of Cenvat Credit on inputs or capital goods was not sufficient compliance with the Board's Circular. They emphasized the need for a specific declaration on each consignment note, as per the Circular's procedure, to avail the abatement under the notification.

3. Arguments of the Assessee:
The Assessee contended that a general declaration on the letterhead of the GTA, stating the non-availment of Cenvat Credit, was compliant with the conditions of Notification No. 32/2004-ST. They highlighted that the Notification did not prescribe a specific format for the certificate and cited relevant statutory provisions and case laws to support their stance.

4. Tribunal's Decision:
After hearing both sides and examining the appeal records, the Tribunal held that the Department's insistence on a declaration on each consignment note for availing the abatement was unsustainable in the absence of a prescribed format under the notification. The Tribunal found that the declarations provided by the GTA on their letterhead were sufficient for compliance with the notification's conditions. Therefore, the benefit of the exemption notification could not be denied to the assessee.

5. Conclusion:
Based on the observations and legal precedents, the Tribunal dismissed the appeal filed by the Revenue, upholding the impugned order that allowed the appeal of the assessee. The Tribunal emphasized that the declarations on the GTA's letterhead certifying non-availment of Cenvat Credit should have been accepted by the Department for extending the benefit under the relevant notifications.