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TMI Blog2018 (2) TMI 1444X X X X Extracts X X X X X X X X Extracts X X X X ..... thout 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 or expand t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the notification were fulfilled. Accordingly, show cause notices were issued to appellant. The original authority vide order dated 29.11.2007, dropped the proceedings in the matter, extending 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, dt. 20.06.2003. However, a revision notice was issued on 18.03.2008, under section 84 of the Finance Act, 1994, which culminated in the Order-in-Revision dated 23.07.2009 (impugned order), modifying the order of the original auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of appellant by the decisions of Hon'ble CESTAT, South Zonal Bench, Bangalore vide its Final Order No.24/2011, dated 18.01.2011 and Hon'ble CESTAT, West Zonal Bench, Bombay vide its Final Order No.A/85116-85117/16/STB, dt. 30.10.2015. 5. On the other hand, on behalf of the Revenue, Ld. AR, Shri A.V. Subramaniyam, supported the impugned order. 6. Heard both sides and gone through the facts. Notification No.32/2004-ST restricted the service tax liability on taxable value in respect of services provided by Goods Transport Agency (GTA) to 25% of the gross amount charged. This notification was rescinded w.e.f. 01.03.2006 by notification No2/2006-ST, dated 01.03.2006. However, the exemption allowing for discharge of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that neither credit of inputs or capital goods used for the provision of service has been taken nor the benefit of notification No.12/2003 has been taken by them. The said circular is reproduced below: F.No.137/154/2008-CX.4 Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs Dated August, 21, 2008 Subject : Service Tax - GTA - Certain furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsignment 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 issued in July 2005, such endorsements were not available on consignment notes issued prior to that period i.e. between Jan 2005 when the service tax was imposed on GTA service and July / August 2005, when the Board Circular reached the field formations. This has been the reason for certain notices still remaining pending. 04. The matter has been examined. Considering the facts and circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sangam Structurals Ltd [2015(39) STR 1034(Tri.-DeI.)] 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 are beyond requirement of exemption notification. The Tribunal also held that Hit is settled law that CBEC circulars cannot restrict or expand the amplitude of an exemption notification nor can they add/subtract conditionalities thereto/ there from e) In a landmark judgment, Hon'ble Apex Court in the case of Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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