9911796707
TMI Blog2018 (2) TMI 1443X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant 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 - demand cannot sustain. Reliance placed in the case of CCE, Allahabad Versus M/s. Sangam Structurals Ltd. [2015 (3) TMI 523 - CESTAT NEW DELHI], where it was held that conditions prescribed by the CBEC circular dated 27.7.2005 seem to go beyond the requirement of the exemption notification. It is settled law that CBEC circulars cannot restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the proceedings in the matter and extended the benefit of exemption to appellant, relying on the undertaking letters furnished by the transporters of the appellant to the effect that they have not availed the credit of duty on inputs and capital goods used for providing such taxable service and also that they have not availed benefit of notification No.12/03-ST, cit. 20.06.2003. However, a revision notice was issued on 18.02.2008, under section 84 of the Finance Act, 1994, which culminated in the Order-in-Revision dated 30.04.2009 (impugned order), modifying the order of the original authority and inter-alia confirming demand of service tax liability of ₹ 55,367/- and imposing penalties under sections 76 78 of the Finance Act, 199 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8, 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. 7. 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 that neither cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought 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 27-7-05, it was clarified by the Board that such 'a declaration from the GTA on the consignment note issued, to the effect that neither credit on input or capital goods used for the provision of service has been taken nor the benefit of notification No.12/2003-ST has been taken by them may suffice for the purpose of availment of abatement by person liable to pay service tax'. 03. Since, this clarification was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ratio of the following case laws: a) CCA Allahabad Vs. Sangam Structurals Ltd 1034 (Tri.-Del.)] b) CCE Rajkot Vs. Advance Diese, Engineering Pvt Ltd. - 201 (Tri.-Ahmd.)] c) CCE, Patna Vs. H. T Media - 362 (Pat). d) Union of India Vs. Intercontinental (India) 16(S.C). The Tribunal in these cases held that the conditions prescribed by CBEC circular regarding declarat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
