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TMI Blog2016 (1) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... lent to 25% of the gross amount charged. As per the condition of the notification, exemption shall not apply in such case where Cenvat credit of input or capital goods used for providing such taxable services, has been taken under the provisions of Cenvat Credit Rules, 2004 or the Goods Transport Agency has availed the benefit under Notification No. 12/2003-ST dated 20/6/2003. In the show cause notice, it was alleged that the assessee has not complied with the said two condition of the notification and accordingly proposed the denial of exemption notification No. 32/2004-ST. The assessee during the adjudication submitted declaration of almost all the transporter wherein it was certified that Transporters have neither availed Cenvat credit on input or capital goods nor availed Notification No. 12/2003-ST. The Adjudicating authority accepted the said declaration only for limited period i.e. 1/1/2005 to 27/7/2005 and accordingly dropped service tax demand for the said period, however for the period subsequent to 27/7/2005, the said declaration was not accepted and it was contended that as per the Board Circular Vide F.No. 137/154/2008-CX-4 dated 21/8/2008 such declaration can be accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd [2010 (17) STR 242 (Tri. Bang)] (e) Commissioner of C. Ex. Rajkot Vs. Sunhill Ceramics Pvt. Ltd. [2008 (9) STR 530 (Tri. Ahmd.)] (f) Sandoz P. Ltd. Vs. Commissioner of Central Excise Raigad [2014 (33) STR 424 (Tri. Mum)] (g) Commissioner of S.T. Ahmedabad Vs. Cadila Pharmaceuticals Ltd. [2010 (18) STR 611 (h) Commissioner of Service Tax, Ahmedabad Vs. Cadila Pharmaceuticals Ltd. [2012 (27) STR 127 (Gud)]. 4. Shri. A.B. Kulgod, Ld. Asstt. Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the Ld. Commissioner to the extent demand confirmed by the Adjudicating authority, Ld. A.R. further submits that as per Notification No. 32/04-ST, the assessee is under obligations to satisfy the conditions that the transporter, who provided services has not availed the Cenvat credit and the benefit of Notification No. 12/2003-ST which was not complied with by the assessee therefore they are not entitled for the exemption provided under Notification No. 32/2004-ST. As regard the department's appeal. Ld. A.R. reiterating the ground of appeal submits that ingredients of imposition of penalty under Section 76 and 78 are distinct and se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence to the effect that GTA has availed Cenvat credit and/or Notification No. 12/2003-ST. For this reason also whole proceedings right from show cause notice to adjudication gets vitiated. 6.2 We also find that assessee in the present case has discharged the service tax, in accordance with the statutory provisions made for payment of service tax on reverse charge mechanism. Under this provision the assessee's status is of deemed service provider. The exemption notification is availed by the assessee in the capacity of deemed service provider therefore any condition of the notification is applicable to the assessee only for discharging the service tax. In our view, only assessee themselves who have to satisfy the condition of the notification and not the GTA. It will be a very absurd situation when 'A' is availing exemption notification and 'B' is required to fulfill the condition of the notification. Admittedly it is not case of the Revenue that the assessee have availed the Cenvat credit on input or capital goods used for providing services of GTA, therefore in our view, condition of the notification stands complied with. We have gone through judgments cited by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble Supreme Court in CCE, Vadodara Vs. Dhiren Chemicals Inds. [2002 (139) ELT 3 (SC), wherein it has been held that Board's circular in favour of the appellants have to be applied. Further the requirement of declaration in the invoice is only procedural and there is substantial compliance with the requirement of the Notification. Accordingly, I do not find any reason to interfere with the order of the Commissioner (Appeals) and accordingly reject the appeal filed by the Revenue. (d) Commissioner of Central Excise Visakhapatnam s. A.P. Paper Mills Ltd [2010 (17) STR 242 (Tri. Bang)] 6. On a careful consideration of the submissions made by the learned DR and perusal of the impugned order, we find that the Commissioner (Appeals) has recorded the following findings: "6. I have carefully gone through the case records and considered the rival contentions. The issue before me is whether abatement of 75% on the freight charges is available to the appellants in terms of Notification No. 32/2004, dated 3-12-2004 or not. 7. In terms of Notification No. 32/2004-S.T., dated 3-12-2004, taxable service provided by a goods transport agency to a customer in relation to transport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be denied as declaration not produced on nonavailment of Cenvat credit of duty paid on inputs or capital goods by transporter. Condition of non-availment of credit related to services rendered by transport agency . Respondent as consignor not rendered transport service and not availed credit on inputs/capital goods for providing such service Impugned order of Commissioner (Appeals) allowing abatement sustainable Section 93 of Finance Act, 1994. Rule 2(1)(d) of Service Tax Rules, 1994." I also would cite the findings of CESTAT in para 5.2 of the above case law which are as follows: "5.2 In respect of the Goods Transport Agency services, the service provider is undoubtedly goods transport agency. However, the liability to pay tax in certain cases has been shifted to either the consignor or to the consignee depending upon who actually paid the freight. In other cases where neither the consignee nor consignor is required to pay the service tax, the responsibility for paying service tax continues with the concerned Goods Transport Agency. The condition of not taking "credit of duty paid on inputs of capital goods used for providing such taxable service" necessarily should rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs. Commissioner of Central Excise Raigad 5. We observe that in this case appellant availed goods transport agency service and paid the Service Tax as per the Service Tax Rules, 1994 as service recipient. Although there is no endorsement on the consignment that the transporter has not availed Cenvat credit but it is implied that when the transporter has not paid any Service Tax, question of availment of input/input Service Tax credit does not arise. In view of these observations, we do not find any merit in the impugned order. Therefore, impugned order is set aside and the appeal is allowed with consequential relief, if any. Commissioner of S.T. Ahmedabad Vs. Cadila Pharmaceuticals Ltd. 4. We have considered the submissions. Notification No.32/2004-ST, dt.03.12.04 provides for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no CENVAT Credit has been availed and benefit of Notification No.12/2003-ST, dt.20.06.03 has not been availed. The respondents are paying the service tax as per the reverse charge mechanism and the relevant notification whereby the service receiver i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner'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 Tribunal's order, remanding the matter for verification of evidence, that order becomes final and Revenue cannot challenge the impugned order, ignoring the remand order." 5. Similar such issue had arisen for our consideration in Tax Appeal No. 523 of 2010. The said Tax Appeal has been dismissed in the following manner: "Department is in appeal against the judgment of Customs, Excise & Service Tax Appellate Tribunal ('Tribunal' for short), dated 6-8-2009 by which appeal of the department came to be dismissed. The issue pertains to filing of general declaration instead of consignment-wise declaration by assessee declaring that cenvat credit is not available. Against the decision of the competent authority dated 7-1-2009, the Commissioner (Appeals) allowed the appeal of the assessee holding that assessee is eligible to claim the benefit of exemption on the ground that procedure was substantially complied with as provided in Notification dated 3-12-2004. The Tribunal concurred with the view of the Commissioner (Appeals) and dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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