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TMI Blog2015 (12) TMI 1404X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of service tax. Thereafter, the Revenue sought to impose service tax on the person, who pays or is liable to pay freight either himself or through his agent for the transportation of goods by road. By Notification No.43/97-ST dated 05.11.1997; the term "person" defined is a factory, company or corporation etc. Thereafter, levy in respect of GTO services was withdrawn by Notification No.49/98-ST dated 02.06.1998 by exempting the service from taxation. The Appellant relied upon a decision of the Hon'ble Supreme Court in the case of Laghu Udyog Bharati Vs. Union of India reported in 1999 (112) ELT 365 (S.C.). The Hon'ble Apex Court has observed as under : "8. Section 66, which is a charging section provides that the charge of tax at the rate of 5% is on the value of the taxable services which are provided to any person by the persons responsible for collecting the service tax. In so far the clearing agents and the transporters are concerned Section 66 has to be read with Section 65(d)(41), (J) and (M), according to which taxable service is what, in the case of clearing and forwarding agents, rendered to his client and in the case of goods transporter is rendered to its cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the provisions can be read harmoniously. 10. By amending the definition of "person responsible for collecting the service tax" in the impugned rules with regard to services provided by the clearing and forwarding agents and the goods transport operator, the person responsible is said to be the client or the customer of the clearing and forwarding agents and the goods transporter. In relation to the services provided by others and referred to in sub-rules (i) to (xi) and (xiii) of Rule 2 (d), the definition of "the person responsible" is in consonance with the definition of that expression occurring in Section 65 of the Act. However, with regard to the services rendered by clearing and forwarding agents and the goods transport operator the definitions contained in Rules 2 (d)(xii) and (xvii), which seeks to make the customers or the clients as the assessee, is clearly in conflict with Sections 65 and 66 of the Act. 11. Section 68(1A) cannot, to our mind, regard a customer or a client of the clearing and forwarding agent or of the goods transport operator being treated as an assessee, who will become liable to file a return and be subjected to the levy of service tax and if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or other evidence, if any, as he has obtained under sub-section (1) and after taking into account any relevant material, which he has gathered, shall by an order in writing, assess the value of taxable service and the amount of service tax payable on the basis of such assessment.' 12. These sections clearly show that the return which has to be filed pertains to the payment which are received by the person rendering the service in respect of the value of the taxable services. Surely, this is a type of information which cannot under any circumstances, be supplied by the customer. Moreover, the operative part of sub-section (1) of Section 70 clearly stipulates that it is the person responsible for collecting the service tax who is to furnish the return. By rules which are framed, the person who is receiving the services cannot be made responsible for filing the return and payment of tax. Such a position is certainly not contemplated by the Act. 13...................................................................................... 14. We have no hesitation in holding that the provisions of Rule 2 (d)(xii) and (xvii), in so far as It makes persons other than the clearing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where neither the Assessee had paid nor the Revenue had taken an effective steps for collection of tax on such transaction. It is further taken note of the fact that the service tax in respect of GTO was re-introduced w.e.f. 01.01.2005 on the receiver of transport services (on reverse charge basis). The ld.Counsel further pointed out that this Tribunal under similar circumstances, in the case of M/s L. H. Sugar Factories Ltd. Vs. Commissioner of Central Excise, Meerut II reported in 2004 (165) ELT 161 (Tri.-Del.), where the inputs were sugar and the Appellants in the course of business, availed services of GTO for transportation of goods and the service tax was not collected w.e.f. 16.11.1997 to 01.06.1998. This Tribunal following the ruling of the Hon'ble Supreme Court in the case of Laghu Udyog Bharati (supra), observed that under the provisions of Sections 73, 68 (1), 71A & 73 (3) of the Finance Act, 1994, in so far receiver of services is concerned, there was no date for filing prescribed for return as laid down by the Hon'ble Supreme Court in the case of Laghu Udyog Bharati (supra). Accordingly, it was justified, in such a condition that no show-cause notice could hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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