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TMI Blog2018 (2) TMI 928X X X X Extracts X X X X X X X X Extracts X X X X ..... of notification No. 35/2004-ST, dated 03.12.2004. 2. On study of the ST-3 returns filed by the appellant for the period 01/2005 to 02/2006, it was noticed that they were discharging service tax liability on 25% of the total freight charges paid by them, availing the benefit of Notification No. 32/2004-ST, dated 03.12.2004. Though appellants were not the providers of Goods Transport by Road Service , they were paying the service tax by virtue of sub clause (v) of clause (d) of sub-rule (1) of Rule 2 of Service Tax Rules, 1994 and as per Notification No. 35/2004-ST, dated 03.12.2004, as person liable for payment of service tax . 3. Department took the view that notification exemption is not available to appellant as there was no evidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have been taken credit on inputs or capital goods and should not have availed the benefit of Notification No. 12/2003-ST, dated 20.06.2003. Ld. Advocate further submits that the Board vide circular No. 137/154/2008-CD.4, dated 21.08.2008 has clarified that benefit of availment of abatement may also be extended in past cases if the tax payers produce a general declaration from GTA to the effect that neither credit on input and capital goods used for provision of service has been taken nor the benefit of Notification No. 12/2003-ST has been taken by them. In the case in hand, such declarations have been submitted and hence denial of notification benefit is not just and fair. 5. On the other hand, on behalf of the Revenue, Ld. AR, ShriTarun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Finance Bill 2008, the CBEC vide letter No. 334/1/2008-TRU, dated 29.02.2008, took note of the difficulties in fulfilling the condition of non-availability of cenvat credit by the Service Provider, when the tax liability is paid by consignor or consignee who pays the freight. CBEC clarified that service tax would be required to be paid only on 25% of the freight, irrespective of the fact who pays the service tax, without requirement to prove non-availment of cenvat credit by GTA service provider. 9. CBEC issued yet another circular F.No. 137/154/2008-CX, dated 21.08.2008, which, further clarified that benefit of availment of abatement may also be extended in past cases if the tax payers produce a general declaration from GTA to the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board that certain notices still remains undecided on the ground that the person liable to pay tax has not been able to produce evidences of non-availment of benefits of CENVAT Credit or benefit of notification No.12/2003-ST. In this regard, vide Para 31 of the circular No.B1/6/2005-TRU dated 27-7-05, it was clarified by the Board that such a declaration from the GTA on the consignment note issued, tothe effect that neither credit on input or capital goods used for the provision ofservice has been taken nor the benefit of notification No.12/2003-ST has beentaken by them may suffice for the purpose of availment of abatement by personliable to pay service tax . 03. Since, this clarification was issued in July 2005, such endorsements wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008. Hence, the impugned order cannot sustain and will require to be set aside, which we hereby do. 11. In arriving at this decision, we also draw sustenance from the ratio of the following case laws: a) CCA Allahabad Vs. SangamStructurals Ltd. [2015(39)STR 1034(Tri.-Del.)] b) CCE Rajkot Vs. Advance Diesel Engineering Pvt. Ltd. [2008(10)STR 201 (Tri.-Ahmd.)] c) CCE, Patna vs. H.T Media 2011(271)ELT 362 (Pat). d) Union of India vs. Intercontinental (India) [2008(226)ELT 16(S.C). The Tribunal in these cases held that the conditions prescribed by CBEC circular regarding declaration by GTA of consignees ..... X X X X Extracts X X X X X X X X Extracts X X X X
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