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TMI Blog2015 (11) TMI 163X X X X Extracts X X X X X X X X Extracts X X X X ..... hey should not have availed notification 12/2003. We find that in the present case the service providers are the transport operators. On perusal of payment vouchers dt. 25.4.2005, 3.6.2005 and 26.8.2006 issued by the appellants to various individual truck owners, we find there is no document or any consignment note by the assessee. It is pertinent to state that as per GTA rules, the GTA should issue consignment notes and not the individual truck owners. In the present case, since the individual truck operator is not registered with service tax, the question of availing input credit or capital goods credit does not arise. The Board’s circular dt. 27.7.2005 and 23.8.2007 are applicable to consignment agents who issue consignment notes to, tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08 are filed by assesses against separate OIAs as above passed by Commissioner (Appeals), Salem. Appeal Nos. ST/178 to 180/2010 are filed by Revenue against the Commissioner (Appeals) orders dt. 30.12.2009. Appeal Nos.205 to 208/2008 2. The appellants are registered with Central Excise as EOU for manufacture and export of polished granite slabs. The appellants have also obtained service tax registration for payment of service tax as recipient of GTA service on the freight paid for transport of granite from quarry to the factory and also from factory to the port of destination. They have paid service tax on 25% of value and claimed abatement of 75% as per notification 32/2004. Show Cause Notice was issued to the assesses for denying th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax on GTA as recipient as per the notification 32/2004 and submits that the transporters are individual truck operators and not a GTA. He submits that being a individual truck operators, they are not registered with service tax and also and not availed any cenvat credit on inputs and capital goods. As per the Finance Minister's Speech, the service tax is levied only on GTA and not on individual truck operators. They paid service tax on their own by claiming abatement of 75% in terms of the above notification. He relied Board s Section 37B order No.5/1/2007-ST dt. 12.3.2007 wherein the Board has clarified that abatement is eligible for person who is paying service tax as a recipient on GTA. Therefore, they have correctly paid the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 at para-4 person who is liable to pay service tax as recipient is entitled to the benefit of Notification No.32/2004 subject to fulfilment of the condition of the notification. He submits that in the present case, there is no declaration or no proof that the condition (i) and (ii) of the notifications are complied. Therefore, the adjudicating authority and the Commissioner (Appeals) in the assessee s appeals have rightly confirmed the demand and imposed penalty as the said conditions have not been fulfilled. In the case of Revenue s appeals the Commissioner (Appeals) has not examined merit of the case but merely relied on Tribunal s order and set aside the OIO. He submits that Hon'ble High Court in the case of CCE Vs Suibramania Siv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y exempts the taxable service provided by a goods transport agency to a customer, in relation to transport of goods by road in a goods carriage, from so much of the service tax leviable thereon under section 66 of the said Act, as is in excess of the service tax calculated on a value which is equivalent to twenty five per cent, of the gross amount charged from the customer by such goods transport agency for providing the said taxable service : Provided that this exemption shall not apply in such cases where - (i) the credit of duty paid on inputs or capital goods used for providing such taxable service has been taken under the provisions of the Cenvat Credit Rules, 2004; or (ii) the goods transport agency has availed the bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vident that once the service provider is not registered with service tax, the fulfilment of condition of notification No.32/2004 does not arise. However, we do not agree with appellant s contention that they are not liable to pay service tax as the Hon ble High Court in the case of CCE Salem Vs Suibramania Siva Co-op Sugar Mills Ltd. (supra) clearly held that any person who avails GTA Service from any person including individual truck operators are liable to pay service tax under section 65 (105) of the Finance Tax. Therefore, the appellant is eligible to pay service tax as a recipient and they are eligible for abatement and the appellants have rightly paid 25% service tax on the freight paid. It is pertinent to state that w.e.f 1.1.2010 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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