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TMI Blog2023 (8) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of container handling services and also procurement of space in the railway rack for their customers. On scrutiny of records, it transpired that the appellant was availing benefit of Notification No. 1/ 2006 -ST and paid the Service tax after availing abatement of 70% under the category of Transport of goods in container by rail. However, at the same time appellant has also availed the Cenvat credit on input services, which was in contravention to the provisions of the Notification ibid. Statements of Shri Chirag P Patel, partner of appellant was recorded. Consequently, it appeared that the Appellant has violated the condition of Notification No. 1/2006 and they are not eligible for availing abatement from the gross value of the ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is liable for tax only on their facilitation /commission charges. However, appellant has by mistake, shown gross amount (including transportation charges recovered on behalf of M/s ETA) in ST-3 returns and compensated /offset the same by showing Cenvat Credit on amount paid to M/s ETA. The appellant was only required to reflect their facilitation /commission charges and to discharge the service tax liability on the same. 2.1 He argued that appellant has not actually availed any CENVAT credit for the period under consideration. However, the service tax paid on transportation charges paid to M/s ETA has been wrongly reflected as CENVAT in ST-3 returns to neutralize the output service tax wrongly shown in ST-3 returns on transportation ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half of the client. In the present matter Ld. Commissioner has accepted the facts that Appellant are just facilitator /mediator for procurement of space in railway rack and appellant have not provided services of transportation of goods by rail as alleged in show cause notice. The demand has been confirmed by the Ld. Commissioner only on the ground of Rule 5 of the Service tax Determination of Value Rules, 2006. 2.5 Without prejudice, he also submits that the Hon‟ble Supreme Court in the case of UOI Vs. Intercontinental Consultants & Technocrats Pvt. Ltd. -[2018] 91 taxmann.com 67 (SC) has held that Rule 5 of Service tax Determination of Value of Rules, 2006 is ultravires to the Section 67 of the Finance Act, 1994. Accordingly, even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nn.com 16 (Jharkhand) * Central Warehousing Corporation Vs. Commissioner of Service tax, Ahmedabad [2015]54 taxmann.com 29 (Ahmedabad -CESTAT) 2.7 He also submits that appellant has been registered and has been regular in payment of taxes and filing returns. Appellant‟s firm has bonafide interpretation that they are acting only as facilitator or mediator for the transportation by rail services. The appellant has relied upon the terms of the agreement with parties and concluded that they were engaged in facilitation activities only. Appellant has bonafide belief that they are liable to pay service tax only on commission income and not entire amount including recovery of transportation expenses. Further, they were under impression th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppression of facts unless it was deliberate to stop the payment of taxes. Suppression means failure to disclose full information with intent to evade payment of taxes. When the facts are known to both the parties omission by one party to do what he might have done would not render it suppression. The burden is cast upon the revenue to prove suppression of facts. An incorrect statement cannot be equated with a willful misstatement. The latter implies making of an incorrect statement with the knowledge that statement was not correct. As far as fraud and collusion are concerned, it is evident that the intent to evade of tax is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the service tax liability by availing Cenvat Credit and paid service tax after availing abatement of 70% of the gross amount. We find from the records and copy of ST-3 produced before us that appellant had been filing the ST-3 returns regularly to the Jurisdictional Range officers. It is on record that the appellant shown all the details in ST-3 returns. We find that Appellant has shown the category of Transport of Goods by Rail services in all the ST-3 returns and has also shown the fact that they were availing Cenvat Credit. In the said ST-3 return, admittedly against the "Column A1 -Name of Taxable Service" Appellant have shown name of service as Goods Transport Agency and Transport of Goods in Container by Rail Service. Further in colu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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