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TMI Blog2014 (6) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... Member (T) Shri Vishal Agrawal Ms. Dimple Gohil, Advocates, for the Appellant. Shri P.N. Sarvaiya, AR, for the Respondent. ORDER This appeal is directed against Order-in-Original No. 10/MP/2010, dated 27-10-2010. 2. The relevant facts that arise for consideration are the appellant herein was engaged by M/s. Essar Oil Ltd. (hereinafter referred to as EOL) for transportation of their final products from refinery to depots of EOL itself, as well as to various terminals hired by the EOL. In the case of transfer of final products to depots of EOL, Service Tax leviable is being paid by EOL itself hence it was not in dispute. Whereas in the case of transportation of final products from refinery of EOL to their franchisees and other depots of the EOL as the goods transport agency, are charging freight from said consignee, on the basis of lorry receipts. After a detailed investigation and recording of various statement, show cause notice was issued to appellant directing them show cause as to why Service Tax liability under GTA services be not demanded from them, interest thereof and also why penalties be not imposed on them. The appellant herein defended their actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods by road services. He would then take us through the findings recorded by the adjudicating authority and submit that the appellant herein is responsible in respect of the services rendered by transportation of goods from EOL to their franchisees and clarification given by C.B.E. C. Circular No. 341/18/2004-TRU, dated 17-12-2004 would be directly applicable in this case. It is his submission that when the consignee is covered under the entity as provided under the Rule 2(1)(d)(v), and if the consignor does not pay the freight, appellant being provider of GTA services is liable to discharge the services on the freight collected by them from the consignee. It is his submission that since the consignee who are making payment towards freight do not get covered, appellant cannot escape themselves from liability to pay Service Tax on such services to the Government; though it may be mentioned on the consignment note that consignee is liable to pay Service Tax. It is his submission that the appellant herein has to ensure that the person liable for paying Service Tax is the person covered under 2(1)(d)(v) of the Service Tax Rules, 1994 or he has to discharge the service tax liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para (v) :- (v) In relation to taxable service provided by a goods transport agency, where the consignor or consignee of goods is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (b) any company established by or under the Companies Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any Part of India; (e) any co-operative society established by or under any law; (f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder; or (g) any body corporate established, or a partnership firm registered, by or under any law, any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage; It can be seen from the above reproduced that appellant falls under the category of goods transport agency as he issues consignment notes, and also provides services. 9. It has also to be see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the appellants are a Goods Transport Agency rendering taxable service. He demanded interest under Section 75. Penalties were also imposed under Sections 76, 77 and 78 of the Finance Act. The appellants were aggrieved over the order of the lower authority. Hence, they approached the Commissioner (Appeals). The Commissioner (Appeals) after examining the issue in the light of law set aside the original order, remanded the matter to the Adjudicating Authority to determine the liability of the appellants in the light of provisions of Section 68(2) of the Finance Act read with Rule 2(1)(d)(v) of Service Tax Rules, 1994. 5. The learned Advocate made several submissions. The gist of them are given below : (a) The appellants use their own vehicles. They are the owners of the vehicle and they are not the Goods Transport Agency. The service provided by a Goods Transport Agent to a customer in relation to transportation of goods is a taxable service. The transportation of goods by road per se is not a taxable service. There must be service provided to a customer by a goods transport agent in relation to transportation of goods by road. The measure of the tax is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on the savings part of the premium collected by an insurer. 6.1 From the above, it is very clear that the legislative intent is to tax only the services provided by a Goods Transport Agent to a customer and not the owner. Further, the learned Advocate referred to our attention Rule 2(1)(d)(v) of the Service Tax Rules, 1994 wherein the person liable to pay service tax is defined. Person liable to pay service tax means the person who pays or is liable to pay the freight. Rule 2(1)(d)(v) is reproduced herein below : (v) in relation to taxable service provided by a goods transport agency, where the consignor or consignee of goods is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (b) any company formed or registered under the Companies Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; (e) any co-operative society established by or under any law; (f) any dealer of excisable goods, who is registered under the Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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