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TMI Blog2023 (9) TMI 648X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the appellant could charge 2% of the sale value of the equipment for this transportation. It did not matter what was the actual cost of transportation incurred by the appellant. If it was more, the appellant would have to suffer the loss and if it was less, the appellant could gain. Nothing in the records produced show that the appellant was providing Goods Transport Agency Service to M/s NTPC. The person liable to pay service tax in case of Goods Transport Agency Service is the one who is liable to pay the freight for the transportation of such goods. In other words, it is the NTPC which would have been liable to pay service tax and not the appellant. It also needs to be pointed out that the appellant had hired the services of Goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to power generation plants. It was registered with the service tax department for providing Erection, Commissioning and Installation Services, Management Maintenance and Repair Services with the service tax department. It was also registered as a service recipient under the category Transport of Goods by Road Service under section 65 (105) (zzp) of the Finance Act, 1994 [Act]. It needs to be pointed out that as per Rule 2 (1) (d) (i) (B) of Service Tax Rules, 1994 in respect of some services, the person liable to pay service tax is the service recipient instead of the service provider. It reads as follows :- (d) person liable for paying Service tax (i) in respect of the taxable services means (B) in relation to service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplies to NTPC; (iii) Contract under which the appellant performed various services in relation to the equipment obtained under the first two contracts. Under this contract, the appellant received service charges on which it paid service tax. As per this contract, the appellant was also required to transport the equipment to the site for which it was entitled to invoice the NTPC @ 2% of the sale value of the goods supplied by the appellant regardless of the actual cost of transportation it incurred. 4. The appellant had supplied the goods and invoiced NTPC @ 2% of the value of the goods towards transportation charges. The appellant hired other transporters to transport the equipment and paid them for the transport. On these goods tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended period of limitation ; (e) Since the demand itself is not sustainable, the confirmation of interest cannot be sustained ; (f) Penalty is not imposable even if the case is decided against the appellant as per section 80 of the Act which reads as follows :- Notwithstanding anything contained in the provisions of section 76, section 77 or section 78, no penalty shall be imposable on the assessee for any failure referred to in the said provisions, if the assessee proves that there was reasonable cause for the said failure . 6. In view of the above, learned Chartered Accountant for the appellant prays that the appeal may be allowed and the impugned order may be set aside. 7. Learned authorized representative for the Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort Agency Service to M/s NTPC. The person liable to pay service tax in case of Goods Transport Agency Service is the one who is liable to pay the freight for the transportation of such goods. In other words, it is the NTPC which would have been liable to pay service tax and not the appellant. It also needs to be pointed out that the appellant had hired the services of Goods Transport Agencies for transporting the goods and as the service recipient, it had discharged service tax on the amounts which it paid towards goods transportation. 10. To sum up, given the nature of contract, there is nothing to establish that the appellant was providing Goods Transport Agency Service to the NTPC. It was only charging 2% towards the cost of transpor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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