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TMI Blog2018 (2) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... he freight charges paid by them, availing the benefit of notification No. 32/2004-ST, dated 03.12.2004. Department took the view that there is no evidence that credit of duty paid on inputs or capital goods, has not been taken by the Goods Transport Agency under notification No. 12/2003-ST, dated 20.06.2003. Department also took the view that as per order No. 5/1/2007-ST, dated 12.03.2007, there is a requirement of declaration by service provider on the consignment note to the effect that the conditions of exemption notification No. 32/2004-ST and 01/2006-ST have been satisfied, which was not available in respect of the appellants. Accordingly, show cause notices were issued to the appellant, inter-alia, demanding a cumulative service tax l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) Conditions prescribed in the CBEC circular regarding declaration by GTA on consignment notes that notification conditions have been fulfilled is beyond the requirement of the exemption notification. CBEC circulars cannot restrict or expand the amplitude of an exemption notification nor can they add/subtract conditionality s thereto/therefrom. (iv) Abatement under notification 32/2004-ST cannot be denied on the grounds that the Appellant is not a GTA. The appellant as a factory, tax liability is statutorily fixed on them. Abatement is admissible. (v) He relied on the ratio of following case laws: (a) CCE, Allahabad vs. Sangam Structural Ltd. [2015(39)STR/1034 (Tri.-Del) (b) CCE, Vapi vs. neeral Paper Mills Pvt. Ltd. [2009(14)STR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses where liability for tax payment in respect of GTA services is on the consignor or consignee, a declaration by GTA in the consignment note issued, to the effect that neither credit on inputs or capital goods used for provision of service has been taken nor the benefit of notification No. 12/2003-ST has been taken by them, would suffice for the purpose of availment of abatement by the person liable to pay service tax. 6. After introduction of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such persons are also eligible for availing the benefit of the notification, subject to fulfillment of the conditions prescribed therein. There are two conditions for availing the said abatement. One is non-availment of CENVAT credit and second is the non-availment of benefit of notification no.12/2003-ST. 02. After the issuance of the circular, a large number of demand notices were dropped. However, now it has been brought to the notice of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases before the extension of benefit of 75%, abatement to GTA services unconditionally (by notification No. 13/2008, dated 1.3.2008), the benefit of such abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA. In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from concerned transporters. 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. 9. In arriving at this decision, we also draw sustenance from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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