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TMI Blog2010 (6) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, the impugned orders are not sustainable. The same are set aside and the appeals are allowed. - ST/959-973/2009 - 818-832/2010-SM(BR)(PB), - Dated:- 24-6-2010 - Shri Rakesh Kumar, Member (T) REPRESENTED BY: Shri Bipin Garg, Advocate, for the Appellant, S/Shri I. Baig and S.K. Bhaskar, DRs, for the Respondent. [Order]. - Since the issue involved in these appeals is common, the same were heard together. 2. In all these appeals, the appellants are manufacturers of fabrics and purchased yarn from the manufacturers in Nepal. Nepalese suppliers for supply of the yarn issued invoices in two parts - first invoice for value of the goods and the second invoice under heading "statement of expenses" mentioned the amounts for excise duty, transportation from Nepal border to factory premises, clearing expenses, insurance charges, cartage, handling and forwarding charges. On receipt of the goods, the appellants made payment directly to the suppliers for value of the goods and also for other expenses towards excise duty, transportation, clearing expenses, insurance charges, and cartage, handling and forwarding charges. The Department was of the view that the appellants, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to transport the goods nor they were liable to pay freight charges to the transporters, they cannot be said to be person liable to pay Service tax, that it is the Suppliers in Nepal who had engaged the transporters directly and hence it is Nepalese supplier who are recipients of the GTA Service; that since the trans porters are in India, there is no question of import of service, that the appellants have only reimbursed the freight expenses paid by the suppliers and therefore the Nepalese suppliers cannot be said to be agents of the appellants in respect of GTA services and in view of this, the impugned orders are not correct. 5. Shri S.K. Bhaskar, and Shri I. Baig, learned DRs, pleaded that the issue involved in these appeals is as to whether the appellants can be treated as recipient of the GTA service and hence the persons liable to pay service tax in terms of the Notification No. 35/04-S.T., dated 3-4-2004 read with Rule 2(1)(d)(v) of the Service Tax Rules, 1994 on the GTA service, for the transportation of the goods purchased by them from Nepalese suppliers, from Nepal border to their factory premises, that today about 15 appeals are listed and there are some 25 more appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Shri Bipin Garg, in rejoinder, pleaded that the appellants have paid freight expenses to their Nepalese suppliers and Nepalese suppliers cannot be called their agents, when there is no evidence in this regard and no documentary evidence showing that the appellants had instructed the Nepalese suppliers to engage the transporter on their behalf has been produced, that this is simply a case where the Nepalese suppliers had engaged the transporters and billed the appellants for transport charges and the same were reimbursed by the appellants, and that for this, the appellants cannot be treated as the persons who had engaged the transporter or had received GTA service. 7. I have carefully considered the submissions from both sides and perused the records. 8. As regards bunching of appeals involving common issue, since today 15 such appeals have been listed, and since the issue involved in these appeals is common, the same have been taken up for disposal by a common order and since details of other appeals have not been provided, there is no point on waiting for further bunching of the other appeals involving the same issue. 9. As regards the objection raised by the learned DR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing expenses, insurance charges, and cartage, handling and forwarding charges. In these cases, service tax has been demanded only on transportation charges from Nepal border to the appellants' factory premises. The point of dispute is as to whether the appellants can be treated as "the persons liable to pay service tax" in respect of GTA service for transportation of the goods from Nepal border to their factory premises. As per definition of the GTA service, as given in Section 65(105)(zzp) of the Finance Act, 1994, taxable service in relation to "goods transport agency" means any service provided or to be pro vided to any person by a goods transport agency in relation to transportation of goods by road in a carriage and Section 65(50b) defines "Goods Transport Agency" as any person who provides Service of transportation of goods by road in a goods carriage and issues a consignment note by whatever name it is called. Section 66 provides for charging of service tax on specified services mentioned in Section 65(105). As per the provisions of Section 68(1), every person providing taxable service to any person shall be liable to pay service tax at the rate specified in Section 66, in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consignors (the Nepalese suppliers) had acted as agents of the consignees and, therefore, on the freight amount paid to the transporters, the service tax is chargeable from the consignees i.e. appellants. But when it is accepted that a it is the Nepalese suppliers who had paid the transportation charges to the transporters, the appellants cannot be treated as person who had engaged the transporter and had paid to them, just because they had reimbursed Nepalese suppliers for the transport expenses from the Nepal border to the appellants' factory premises. The consignors in Nepal cannot be treated the appellants' agents as no evidence in this regard has been produced. Moreover, for determining as to which person is liable to pay service tax on GTA services in accordance with the provisions of Notification No. 35/2004-S.T. issued under Section 68(2) of the Finance Act, 1994 read with Rule 2(1)(d)(v), the question which has to be answered is as to who had engaged the transporter and who was liable to pay freight to the transporter. In this group of cases, there is no evidence that it is the appellants who had engaged the transporter either directly or through the Nepalese suppliers and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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