9911796707
TMI Blog2023 (2) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 (8) TMI 677 - CESTAT NEW DELHI ] does not, in the absence of stay, alter the validity of the decision of the Tribunal on non-taxability of the very same transaction of the appellant herein for the subsequent period. Appeal allowed. - Service Tax Appeal No. 87589-87590/2016 - A/85185-85186/2023 - Dated:- 3-2-2023 - Mr C J Mathew, Member (Technical) and Mr Ajay Sharma, Member (Judicial) Shri Durgesh Nadkarni, Advocate for the appellant Shri Prabhakar Sharma, Superintendent (AR) for the respondent ORDER These two appeals of M/s Dinshaw Diary Foods Ltd, preferred against recovery of Rs.9,76,720/-, for January 2005 to November 2008, and of Rs.3,68,103/-, for December 2008 to June 2009, respectively under section 73 of Finance Act, 1994, along with appropriate interest thereon under section 75 of Finance Act, 1994, besides imposing penalties under section 76, 77 and 78 of Finance Act, 1994, in [order-in-appeal no. NGP/EXCUS/000/APPL/205-206/16-17 dated 31st August 2016]] order of Commissioner of Central Excise Customs (Appeals), Nagpur, are disposed off by a common order. 2. The issue in appeal is the taxability of the charges incurred for hiring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are that the appellants engaged various transporters/contractors for moving coal from pithead to railway sidings. These contractors do not issue consignment note to the appellant. The appellant had issued, slips with a view to keep the track of the goods for onwards transportation. We have perused one such slip which is issued at the loading point. The serial numbered form contained certain details like weight, date, etc. The admitted fact is that the consignor and consignee are one and the same and transporter of goods is not issuing any consignment note. In such a situation, the original authority quoting letter and spirit of the statute observed that by not issuing consignment note the transporter had violated the provision of Rule 4B of the Service Tax Rules, 1994. We find that the reasoning followed by ld. Commissioner is devoid of merits. It is relevant to examine the concerned legal provisions : Section 65(105)(zzp) of the Act defines the taxable service as under : (zzp) to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage; Section 65(50b) of the Act defines goods transport agency as under : ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for their service. No consignment notes were issued by the transporter. The Tribunal held that as no consignment note as generally understood or delineated in Rule 4B was issued by the transporter to the appellant in the transaction the tax liability under GTA does not arise. 10. Ld. Counsel for the appellant also contested the demand on the question of time-bar. He submitted that the Board issued a draft Circular on 9-10-2006 regarding service tax liability on various activities in open cast mines. One issue in draft circular in transportation of coal from pithead to railway sides and its tax liability under GTA. The Board opined that such movement of goods within the premises of mines may not be covered under taxable service as there is no consignment note for such transportation. However, later when Final Circular was issued on 12-11-2007 there was no clarification on this issue by the Board. Ld. Counsel submitted this fact to emphasis that this was a clear case of interpretation regarding tax liability during relevant time. Hence, there can be no allegation of suppression of fact, etc., to invoke the extended period of limitation against the appellant. He submitted that on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice 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 Vehicle 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 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 docu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
