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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 ..... . Thus, he has suppressed the facts and the extended period of payment has clearly invokable. The appellant is liable to pay the full service tax for the extended period along with interest and is also liable for penalty under section 78 of the Finance Act, 1994 except service tax on Goods Transport Agency Services - Appeal allowed in part. - Appeal No. ST/31046/2017 - Final Order No. A/30585/2018 - Dated:- 23-5-2018 - Hon ble Mr. P.V. Subba Rao, Member ( Technical ) Shri Y. Srinivasa Reddy, Advocate for the Appellant Shri Dass Thavanam, Superintendent /AR for the Respondent ORDER [ Order Per : P. Venkata Subba Rao ] 1. The appellants are registered with Central Excise Department as service provider providing the services of Works Contract Service , Goods Transport Agency , Site Preparation and Clearance and Supply of Tangible goods Service . It was found during audit that they have not paid service tax on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongwith interest when the audit pointed out, under section 73(3) of the Act, even before issuance of show cause notice and proceedings should have concluded as laid down in (i) CCE, Nagpur-II vs. Galaxy Construction Pvt. Ltd [2017(48) STR 37 (Bom.) and (ii) CST, Bangalore vs. C Ahead Info Technologies India Pvt. Ltd [2017(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 personal hearing, Ld. Counsel for the appellant reiterated the above arguments and pleaded that the penalties imposed on them ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0b) provides service in relation to transportation of goods under a consignment note which should have the particulars as prescribed in explanation to Rule 4B. In the present case admittedly no consignment notes have been issued. The fortnightly bills cannot be treated as consignment notes, as a consignment note issued by Goods Transport Agency represent its liability to transport the consignment handed over to it to the destination and deliver the same to the consignee and merely a bill issued for transportation of goods cannot be treated as Consignment Note. The fact of non-issue of consignment to M/s. Nandganj is admitted in the show cause notice itself. In case of M/s. Bajpur though it is not mentioned in the show cause notice, this plea has been made by the Appellant and the same has not been refuted. The transportation of goods by individual truck owners without issue of consignment note, GR s billties, etc. as prescribed in Rule 4B of the Service Tax Rules, would be simple transportation and not the service of Goods Transport Agency which involves not only undertaking the transportation of the goods handed over to it but also undertaking delivery of the goods to the consig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 memorandum of appeal, but the Tribunal, in deciding the appeal, shall not be confined to the grounds set forth in the memorandum of appeal or those taken by leave of the Tribunal. Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity\ of being hard on that ground . In this case, I find that the service tax on the goods transport agency services forms a component of the total demand and it also has a direct bearing on the interest as well as the penal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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