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TMI Blog2020 (1) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the definition of Goods Transport Agency as provided in Section 65(50b) and after considering the various decisions given by the Tribunal, has allowed the appeal of the assessee by holding that the tax liability under Goods Transport Agency service cannot be sustained. Time limitation - HELD THAT:- The extended period has wrongly been invoked in the present case because the appellant has not suppressed the material fact from the Department as the Department was aware of all the information and moreover, the issue was highly contentious and there were contrary decisions during the relevant time and the appellant had a bona fide belief that they are not liable to pay Service Tax as they have engaged the truck operators for carrying their goods by road. Appeal is allowed on merits as well as on limitation. - HON BLE MR. S.S GARG, JUDICIAL MEMBER AND HON BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri N. Anand, Advocate for the Appellant Shri Madhup Sharan, Asst. Commissioner, Authorized Representative for the Respondent ORDER PER: S.S GARG The present appeal is directed against the impugned order dated 25.05.2009 passed by the Commissioner (Appeals) whereby the Commissioner (A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the category of GTA is attracted only when there is a relationship of agency between service provider and the owner of the goods carriage or the operator of the goods carriage. He further submitted that the Finance Minister in his Budget Speech on the floor of Parliament on 08.04.2004 while moving the Finance Bill, 2004 has clarified that there is no intention to levy Service Tax on truck owners or truck operators. He further submitted that by the speech of the Finance Minister, it is clear that the Government never intended to levy Service Tax on truck owners or truck operators. He further referred to the definition of Goods Transport Agency as provided under Section 65(50b) and submitted that in view of the definition of Goods Transport Agency services must be rendered by the Goods Transport Agency and if the services are provided by Goods Transport Operator then there would be no Service Tax since the levy would fail. He also submitted that initially the Service Tax was levied on Goods Transport Operator but on account of agitation by the truck operators, the levy was abolished in the year 1998 and subsequently Legislature introduced a new levy on Goods Transport Agency w.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relied upon the following decisions: Jaiprakash Industries Ltd. Vs CCE, 2002 (146) ELT 481 (SC) Kiran Ispat Udyog Vs CCE, 2015 (321) ELT 182 (SC) Akbar Travels of India (P) Ltd. Vs CCE, 2015 (38) STR 957 (Ker.) Garodia Special Steels Ltd. Vs CCE, 2015 (38) STR 527 (Tri. Mum.) 5. On the other hand, learned AR defended the impugned order and submitted that the appellants are liable to pay Service Tax under GTA and they have suppressed the information from the Department and therefore the Department has invoked the extended period of limitation. He relied upon the following decisions: E.I.D. Parry India Ltd. Vs CESTAT, Chennai, 2015 (39) STR 968 (Mad.) Sree Balaji Transport VS CCE, Tirupati, 2015 (38) STR 660 (Tri. Bang.) Coromandel Agro Products Oils Ltd. Vs CCE, Guntur, 2014 (33) STR 660 (Tri. Bang.) 5.1. He further submitted that the appellants are liable to pay Service Tax even if they have availed the services from the Good Transport Operator. 6. After considering the submissions of both the parties and perusal of the material on record, we find that the appellants have availed the transport services for transporting their minerals from transport owners/operators. Further, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specious line of reasoning as the provider of goods transport agency service being determined by issuance of consignment note under the statute, it is not within the ambit of a subordinate legislation to create the class of taxable persons by imposing a condition that would, perforce, bring such persons within the tax net. The intent and purpose of Rule 4B has been misinterpreted by the reviewing authority. 5. The goods transported by the District Supply Officer are for a public service which involves a distribution chain. The distributors are mere designated outlets for the public distribution system and, till the transfer of title of the goods to the intended beneficiaries of the system, the goods are in the possession of the District Supply Officer; consequently, during the transportation stage, the respondent does not acquire any lien on the goods which is implicit in the issue of a consignment note. Therefore, no stretch of imagination can document issued by District Supply Officer conveying the goods transported be construed as a consignment note to render the respondent to be a goods transport agency. The demand of tax therefore, fails. 8. The service that is taxable is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by truck owners. We agree to the submission made by the learned Counsel that the issue is now squarely covered by the recent judgment of the Tribunal in the case Nandganj Sihori Sugar Co. Ltd. (supra). We respectfully reproduce the relevant paragraph. 6. In terms of Section 65(105)(zzp), the taxable service means any service provided to a customer, by a Goods Transport Agency, in relation to transport of goods by road in a goods carriage. In terms of Section 65(50a) ibid Goods Carriage has the meaning assigned to it in clause (14) of Section 2 of the Motor Vehicles Act, 1988. In terms of Section 65(50b), Goods Transport Agency means any commercial concern which provides service in relation to transport of goods by road and issues consignment note, by whatever name called. The Service Tax has been demanded from the Appellants as service recipient under Rule 2(l)(d)(v) of the Service Tax Act, 1994 read with Notification No. 35/2004-S.T., dated 3-12-2004, on the payments made by them to transporters against the fortnightly bills being presented by them. While admittedly no consignment notes or GRs have been issued by the transports, according to the Department the Transporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the Revenue s appeal, since it has been held that there is no Service Tax liability of the Appellants, there would be no merit in it and the same is dismissed. 8. In view of the facts and circumstances of this case and the authoritative pronouncement of the Tribunal, we hold that the impugned order is unsustainable and liable to be set aside and we do so. 6.3. Further, in the case of South Eastern Coalfields Ltd. cited supra, the Division Bench of this Tribunal, after considering the definition of Goods Transport Agency as provided in Section 65(50b) and after considering the various decisions given by the Tribunal, has allowed the appeal of the assessee by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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