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TMI Blog2013 (5) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No.12/03-ST, the judgment of the coordinate bench in the case of Indian Oil Corporation Ltd. [2010 (12) TMI 786 – CESTAT Mumbai], holding, that said notification will apply only to the service provider, while in this case the appellant is not a service provider but a manufacturer and the service tax liability under GTA has been fastened on him by way of reverse charge mechanism. Thus, appeal is allowed. - Appeal No.ST/672/11 - Final Order No. A/10432/2013-WZB/AHD - Dated:- 18-3-2013 - Mr. M.V. Ravindaran , J. For the Appellant: Shri Rahul Gajera, Adv For the Respondent : Shri K.N. Joshi, A.R. JUDGEMENT Per : Mr. M.V. Ravindran; This appeal is directed against order-in-appeal No.SA/156/VAPI/2011, dt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct and does not suffer from any infirmity and coming to such a conclusion, the appeal was rejected. 4. Ld. counsel would draw my attention to page No.35 of the appeal memoranda wherein a general declaration was given wherein the goods transportation service was provided during the material period to the appellant. He would also submit that identical issue has already attained finality by the decision of Hon ble High Court of Gujarat in the case of Commissioner of Service Tax, Ahmedabad Vs. Cadila Pharmaceuticals Ltd. 2012 (27) STR 127 (Guj.) and he also relies upon the decision of the coordinate bench of the Tribunal in the case of Andhra Pradesh Paper Mills Ltd. 2010 (19) STR 557 and Indian Oil Corporation Ltd. 2011 (22) STR 282 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant during the material period and find that the said certificate clearly talks about non availment of credit of the duty on the inputs and capital goods by the said service provider. From the point of view of the ld. D.R., that the first appellate authority has recorded the finding, that the said certificate does not indicate that the GTA services is not availing the benefit of Notification No.12/03-ST. I find that this finding of the first appellate authority is not in consonance with the law as has been settled by the coordinate bench of the Tribunal in the case of Indian Oil Corporation Ltd. (supra). The said judgment clearly reads as under: 2. Moving the application for waiver of pre-deposit, the learned Advocate for the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent has not actually rendered the said services; as a consignor he has not availed the credit of duty paid on inputs or capital goods for providing such taxable services; the respondent merely paid the tax which, in the normal course, should have been paid by the transport agency. The decision by the Commissioner (Appeals) is legal and proper. It is submitted that the appellants have already deposited 50% of the duty demand on direction of the Commissioner (Appeals) to decide their appeal. 3. The learned SDR reiterates the findings contained in the impugned order. 4. On a careful consideration of the facts of the case and rival submissions, I find considerable merit in the plea raised by the appellants. The restriction as to admissib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the consignment note. Further, we have to take note of the fact that the notification, as such, does not stipulate any such condition. Notification requiring the receiver of the service to pay the tax also does not stipulate any such condition. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights. It is not the case of the Revenue that the appellants have not received the service or service tax has not been paid. Therefore, we find that the Commissioner s order is just and fair and does not require any interference. Further, as rightly pointed out in the absence of an appeal against the Tribunals order, remanding the matter for verification of evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rlier for consideration, the same were not entertained and therefore in the present Tax Appeal preferred by the Revenue. With no other and further materials having came on record, adjudication and conclusion cannot be different than as was done earlier, this Tax Appeal also requires dismissal and accordingly is disposed of. 11. In view of the facts which have been narrated by me as hereinabove as also judicial pronouncements, which have been cited I find that the issue in this case is squarely covered in favour of the assessee. As regards the finding of the non mention benefit of Notification No.12/03-ST, I am in agreement with the submission of the ld. counsel, as to that the judgment of the coordinate bench in the case of Indian Oil Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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