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TMI Blog2023 (9) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of such notification even though the procedural lapse can be ignored, but the fact that the service provided by the appellant to the GTA service provider which has been used in providing a GTA service needs to be established, which can be established not only on the basis of invoice alone which is not bearing the consignment note number but on any other documents details of the service recipient. Therefore, for that purpose, the matter needs to be remanded to the adjudicating authority. Demand of Rs. 4,34,241/- on cargo handing service - HELD THAT:- The learned Commissioner (Appeals) appreciating the submission of the appellant remanded the matter to reconsider the said demand based upon the fact whether the service was provided prior to its levy or thereafter and the payments received therefore, the record to this fact was not available before him - there is no infirmity in the order of the Commissioner (Appeals) to the extent it relates to the demand of Rs. 4,32,241/- remanding the matter to the adjudicating authority, therefore, this portion of the Commissioner (Appeals) order is upheld. The matter needs to be remanded for reconsideration of the overall issue. The is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rendered Manpower Recruitment and Supply Agency Services and received total consideration of Rs. 3,49,80,166/- but did not pay service tax amounting to Rs. 42,34,958/-on the same. Further during the financial year 2009-10 to 2011-12 the Appellant rendered taxable service under the category of Manpower Supply service and Cargo Handling Service of Rs. 6,49,19,267/- however instead of paying service tax of Rs. 66,86,702- computed on gross amount billed, the Appellants have paid service tax of Rs. 62,52,461/- only computed on the amounts actually received, as reflected in their ST-3 returns. Therefore, the Appellants had short paid service tax by Rs. 4,34,241/-. Though, the Appellants during investigation have paid service tax of Rs. 46,69,199/- vide challan dated 29.12.2012, under protest but they are of the strong view that they are not liable to pay service tax and entire demand of service tax is liable to be set aside. In the above circumstances, Show Cause Notice dated 01.04.2013 was issued alleging that the Appellants were supposed to pay service tax on the Manpower Supply Service provided to GTA service provider during the period from October 2007 and March 2009 amounting to Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant have not complied with the condition of Notification No. 01/2009 inasmuch as in their invoice they have not mentioned the detail of consignment note of the service recipient. It is his submission that there is no dispute that the service were provided to a GTA service provider who has used such service in his output service of GTA, therefore, merely for procedural lapse such as non mention of consignment note details in the appellant s invoice, cannot be the reason for denial of Exemption Notification No. 01/2009. He further submits that the exemption notification is provided with the retrospective effect and that condition of Notification 01/2009 cannot be practically applied retrospectively therefore, this procedure lapse should not come in way to extend the substantial benefit of Notification No. 01/2009. In this regard, he placed reliance on the following judgments: Chowgule Company Pvt Ltd. 2014 (8) TMI 214-CESTAT CCE vs Superior Adoration 2021 (3) TMI 214-CESTAT CCE vs Amara Raja Power Systems 2006 (201) ELT 599 (T) CC vs Malwa Industries Ltd. 2009 (235) ELT 214 (SC) Maliakkal Industrial Enterprises 2013 (290) ELT 330 (Kar.) CCE vs Reliance Indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. The above notification was given retrospective effect in the Finance (No.2) Bill, 2009 which is reproduced below: (H) (1) The notification of the Government of India in the Ministry of Finance (Department of Revenue) No. G.S.R. 10(E), dated the 5th January, 2009, issued in exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994, granting exemption from the whole of service tax leviable under section 66 to any person providing specified taxable services to goods transport agency, shall be deemed to have, and to always have, for all purposes, validly come into force on and from the 1st day of January, 2005, at all material times. (2) Refund shall be made of all such service tax which has been collected but which would not have been so collected as if the notification referred to in subsection (1) had been in force at all material times. (3) Notwithstanding anything contained in the Finance Act, 1994, an application for the claim of refund of service tax shall be made within six months from the date on which the Finance (No. 2) Bill, 2009 receives the assent of the President. Explanation. For the removal of doubts, it is hereby de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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