9911796707
TMI Blog2023 (6) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... rries. The intention between the parties, namely service recipient and service provider, was not to provide transportation of goods by rail. From the invoices issued by the appellant to the service recipient namely M/s. Sterlite Industries (India) Ltd., it is seen that the appellant has collected only freight charges for transportation by road as agreed between the parties. It is also seen mentioned in the invoices that the service tax is payable by consignor. Undisputedly, the consignor, namely, M/s. Sterlite Industries (India) Ltd. has discharged the service tax on the freight charges for transportation of goods by road. Merely because the appellant had to use the rail transportation in certain occasions, it cannot be said that they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther details of the transportation were obtained vide letter of appellant dated 2.3.2009. It was revealed that the goods on behalf of M/s. Sterlite Industries (India) Ltd. was transported by rail during the period from 10.6.2006 to 16.8.2006. The above mode of rail transportation was done by the appellant during the shortage of lorries. The freight amount for transportation as fixed and mutually agreed for transport by road was collected from M/s. Sterlite Industries (India) Ltd. by the appellant. Since the service recipient is a public limited company, consignor is liable to pay the service tax. Thus, service tax on the amount of freight charges for the period 1.6.2006 to 16.8.2006 was paid by the service recipient namely M/s. Sterlite In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had availed services of transportation of goods by rail by Container Corporation of India. But for a limited number of such transportation, the appellant has undertaken the transportation of goods only by road. The appellant has registered with the department under the category of GTA service and is paying service tax whenever they are required to pay the same as service provider. As per Rule 2(1)(d)(v) of the Service Tax Rules, 1994 whenever the consignor is liable to pay the service tax, the appellant was mentioning the same on the invoice. For the service provided by appellant to M/s. Sterlite Industries (India) Ltd., the consignor (service recipient) is liable to pay service tax and the same was indicated in the invoice. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has undertaken transportation of goods by rail is not sustainable. 5. Without prejudice to the above submission, it is also argued by the learned counsel that the demand of service tax has been made on the entire amount of freight charge without allowing 70% abatement as under Notification No. 1/2006. The appellant has fulfilled the conditions for claiming the abatement as they have not claimed any CENVAT credit on inputs / capital goods / input services which is established from the copy of ST-3 returns. The quantification of demand without allowing any abatement is also not sustainable. 6. The learned counsel argued on the ground of limitation also. It is submitted that the Show Cause Notice dated 15.9.2011 for the period June 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce tax is payable by consignor. Undisputedly, the consignor, namely, M/s. Sterlite Industries (India) Ltd. has discharged the service tax on the freight charges for transportation of goods by road. Merely because the appellant had to use the rail transportation in certain occasions, it cannot be said that they have provided services of transportation of goods by rail. Further, the service tax on the rail freight charges also has been discharged. For these reasons, we find that there is no legal basis for the demand raised in the Show Cause Notice. We are of the view that the demand cannot sustain and requires to be set aside. 11. In the result, the impugned order is set aside. The appeal is allowed with consequential relief, if any, as p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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