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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 ..... ner (A.R.) ORDER Per: Ramesh Nair: These two appeals are directed against Order-in-Original No. 05/DEM/ST/VAPI/2011 dtd. 31/1/2011 passed by the Commissioner of Central Excise Service Tax, Vapi, wherein Ld. Commissioner confirmed the demand of ₹ 65,93,433/- and dropped the demand of ₹ 8,86,990/- and also demanded interest under Section 75 and equal amount of penalty of ₹ 65,93,433 under Section 78. 2. The issue involved in the present case is that the assessee, being recipient of GTA Services discharging the service tax on reverse charge basis on GTA services by availing Notification No. 32/2004-ST dated 3/12/2004, according to which service tax is liable to be paid on GTA services only on the value equivalent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the transporters have not availed Cenvat credit and also not taken the benefit of notification 12/2003-ST therefore whether such declaration made either on the consignment note or through affidavit/certificate on the letter head of the transporter, it is one and the same and on that basis Ld. Commissioner ought to have dropped the demand. Ld. Counsel placed reliance on the following judgments: (a) Commissioner Vs. Neral Paper Mills Ltd [2010 (20) STR 601 (Guj)] (b) Indian Oil Corporation Ltd. Vs. CCE, Mumbai II [2011 (22) STR 282 (Tri. Mum)] (c) Commissioner of Central Excise, Vapi Vs. Unimark Remedies Ltd. [2009 (15) STR 254 (Tri. Ahmd)] (d) Commissioner of Central Excise Visakhapatnam S. A.P. Paper Mills 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... redit and/or notification no. 12/2003-ST, whether such endorsement either given on the consignment note or independently by way of certificate /affidavit or on letter head by GTA is sufficient compliance, in our view both will suffice as far as compliance of the condition of the notification is concerned. Therefore the certificate produced by the assessee to the Adjudicating authority is acceptable even for the period after 27/7/2005 also on the basis of which exemption Notification No. 32/2004-ST is admissible to the assessee and we hold so. 6.1 Without prejudice to our above findings, we also observed that without any investigations, Revenue could not have firstly issued show cause notice, secondly confirmed demand without bringing any evidence 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 servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... derable merit in the plea raised by the appellants. The restriction as to admissibility of abatement with reference to non-availment of CENVAT credit applies to the service provider. M/s. IOCL is a recipient of the GTA service and discharged the service tax in terms of Section 68(2) of the Finance Act, 1994. The assessee is entitled to the abatement denied to it as per the impugned order as per the decision in the case of Sunhill Ceramics Pvt. Ltd. (supra). Commissioner of Central Excise, Vapi Vs. Unimark Remedies Ltd. 2. Shri Nilesh M. Desai, Asst. Manager has appeared on behalf of the respondents and reiterated the findings of Commissioner (Appeals). I find that the Commissioner (Appeals) order is well reasoned and is in accordance with the decision of the Hon'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 Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating authority on the issue that the declarations should be on the individual consignment notes. In my opinion, instead of simply not accepting these declarations, the veracity of the same could have been verified by the jurisdictional officers. Keeping in view the practical difficulties in respect of procedural requirement of Service Tax levy, Board has also issued instructions to be liberal in respect of procedural infractions. In any case, the issue is settled now in terms of judgment of CESTAT, Ahmedabad in the case of CCE, Rajkot v. Sunhill Ceramics Pvt. Ltd, wherein it was held that Goods Transport Agency service Exemption - Documentary proof for compliance with notification conditions - Deemed service provider Benefit of Notification No. 32/2004-S.T. sought to 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 sustainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relate to the services actually rendered by the Transport Agency. The respondent has not actually rendered the said services; as a consignor he has not availed the credit of duty paid on inputs of capital goods for providing such taxable services; the respondent merely paid the tax which, in the normal course, should have been paid by the transport agency. The decision by the Commissioner (Appeals) is legal and proper. 6. Therefore, I do not find any reason to interfere with the findings of the Commissioner (Appeals). Sandoz P. Ltd. 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, q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the reverse charge mechanism and the relevant notification whereby the service receiver is liable to pay the tax. The question to be decided is that how exactly it should be determined as to whether the conditions are fulfilled. The Board had clarified that the endorsement has to be made on the consignment note. Further, we have to take note of the fact that the notification, as such, does not stipulate any such condition. Notification requiring the receiver of the service to pay the tax also does not stipulate any such condition. Therefore, the requirements prescribed by the Board as per circular cannot be mandatory and cannot be used for denying substantive rights. It is not the case of the Revenue that the appellants have not received the service or service tax has not been paid. Therefore, we find that the Commissioner'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 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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