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TMI Blog2014 (6) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that a proper consignment note has not been issued. The question that arises is just because private truck operator or a GTA violates the provisions of Rule 4B by not issuing a consignment note can the recipient refuse to pay Service Tax. According to the law, recipient of the services has been made liable to pay and there is no dispute on this issue. According to Notification No. 35/2004-S.T., person who pays the freight is liable to pay. Therefore just because a person has not issued consignment note in accordance with law and violated the provisions of law, it cannot be held that the recipient also can claim that he would also violate the law. Therefore, on analysis of the statutory provisions and Notification, etc., th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , they engage not only Goods Transport Agencies (GTA) but also private truck owners/operators for transporting their goods in private trucks. Appellants were paying Service Tax on the freight paid by them in respect of both categories from whom they were receiving services viz. GTA and private truck owners/operators. It is the submission of the appellant that they stopped paying the Service Tax in respect of services rendered by individual truck owners/operators from May, 2008 after coming to know that they were not liable to pay. Thereafter, they filed a refund claim for the Service Tax already paid by them amounting to Rs. 9,80,863/- which has been rejected by both the lower authorities. Hence the appeal. 3. The refund claim was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules has been issued by these operators. 8. As regards the first submission, according to sub-section (50b) of Section 65 of Finance Act, 1994, goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called. As per the definition, it is difficult to conclude that a private truck operator is not covered by the definition. What is required to be seen is whether the person has provided a service in relation to transport of goods by road and issues consignment note or not. The main claim of the appellant seems to emerge from the fact that the word agency has been used. It is their submission that only agency is not covered and not the truck owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 35/2004-S.T. in the capacity of recipient can take the Cenvat credit was if all the details which are required as per Cenvat Credit Rules, 2004 are available and is not denied the benefit of credit on the ground that a proper consignment note has not been issued. The question that arises is just because private truck operator or a GTA violates the provisions of Rule 4B by not issuing a consignment note can the recipient refuse to pay Service Tax. According to the law, recipient of the services has been made liable to pay and there is no dispute on this issue. According to Notification No. 35/2004-S.T., person who pays the freight is liable to pay. Therefore just because a person has not issued consignment note in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he has not chosen to mention this decision before me. 11. Another ground on which refund claim has been rejected is on the basis that the appellant should have challenged the assessment and in the absence of any challenge to the assessment, refund claim could not have been filed. While in the case of Customs, an assessment is made by a Customs officer. In the case of Priya Blue Industries Ltd. [2004 (172) E.L.T. 145 (S.C.)], the issue was admissibility of refund without challenging the assessment. In the case of Customs, assessment precedes payment of duty and assessment is made by a Customs officer. Therefore, the question of challenging the assessment would arise. In the case of Mafatlal Industries Ltd., the decision was rendered in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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