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TMI Blog2018 (5) TMI 1678X X X X Extracts X X X X X X X X Extracts X X X X ..... certain services and when this was pointed out, they paid the service tax and also paid interest in respect of certain services, details are as follows: S.No. Name of the service Period S.T. Payable (Rs.) Details of S.T. payment (Rs. Actual interest paid (Rs.) 1. Site preparation service 2008-09 (January 2009) 52,753/- 52,753/- was paid on 18.10.2012 29,624/- 2. Commercial Construction Service 2010-11 and 2011-12 10,29,286/- 10,29,286/- was paid on 07.11.2012 ... 3. Supply of tangible goods service 2009-10, 2010-11 and 2011-12 3,38,170/- 3,38,170/- was paid on 12.11.2012 ... 4. Maintenance & Repair service 2010-11 1,99,817/- 1,99,817/- was paid on 12.11.2012 ... 5. Goods Transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (47) STR 125 (Kar.)]. (b) Mere non payment of service tax shall not lead to a bald allegation of suppression of facts with intent to evade the tax. (c) Appellant was under the bonafide belief that he was not liable to pay tax and therefore their allegation of evasion of duty is improper without bringing any positive act satisfying the condition of wilful suppression. (d) Even assuming but not admitting, applicability of longer period of limitation, the appellant was required to pay only 25% of 50% of the penalty since the penalty amount was paid (as tax on transmission work). (e) Lastly, they prayed that Hon'ble Tribunal for setting aside the order of the lower appellate authority and such ordes as deemed fit. 3. During the persona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e transports, according to the Department the Transporter's bills are in the nature of the consignment notes. Under Rule 4B of the Service Tax Rules, 1994, "any Goods Transport Agency which provide service in relation to transport of goods by road in a goods carriage shall issue a consignment note to the customer. In term of Explanation to Rule 4B, 'Consignment Note' means - a document issued by Goods Transport Agency against the receipt of goods for the purpose of its transport by road in a goods carriage, which is serially numbered and contains the name of consignor and consignee, registration number of the goods carriage in which goods are transported, details of goods transported, details of the place of origin and destination, person l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods till delivery. When the transports did not issue consignment notes or GRs or Challans or any documents containing the particular as prescribed in Explanation to Rule 4B of the Service Tax Rules, 1994, the Transporters cannot be called 'Goods Transport Agency" and, hence, in these cases, the service of transportation of sugarcane provided by the transporters would not be covered by Section 65(105)(zzp). In view of this we hold that there will be no Service Tax liability on the appellant sugarcane mills, as they have not received the service from a Goods Transport Agency. In view of this the impugned orders are not sustainable and the same are set aside. The appeals filed by M/s. Nandganj and M/s. Bajpur are allowed. As regards t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) Can the appellant raise the additional issue that they were not liable to pay service tax on the goods transport agency services at this stage which they have not mentioned in the memorandum of appeal? b) Is the assessee liable to pay service tax on the goods transport agency services? c) Is the appellant liable to pay interest demanded on the service tax? d) Has the appellant suppressed facts and evaded tax until it was pointed out by the audit? e) Is the appellant liable to pay penalty under section 78 of the Finance Act, 1994? 6. As far as point (a) is concerned, Rule 10 of CESTAT (Procedure) Rules says that "appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by the Principal Bench of CESTAT in the case of Nandganj Sihori Sugar Company Limited (supra). The ratio of the aforesaid judgment squarely applies to this case and therefore appellant is not liable to pay service tax on GTA. 8. The appellant never disputed that they had not paid the service tax in time. They have also paid interest on some of the services when pointed out by audit. Even in their Memorandum of appeal, the appellant contested the penalties but not the interest part of it. I, therefore, find that there can be no dispute as the appellant is liable to pay interest as applicable on service tax. 9. As far as extended period for recovery of service tax and penalties are concerned, I find that Section 73 permits invoking of e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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