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TMI Blog2023 (9) TMI 718X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the adjudicating authority to consider the evidence available with Revenue and the evidence that may be submitted by the appellant - The Tribunal had directed the adjudicating authority to examine the documents available with Revenue, such ST-3 returns of all these consignees. The authority could have called for the connected invoices/Tax deposit Challans to ascertain payment. The adjudicating authority had to co-relate the same with the evidence that may be submitted by the appellant. It is to be noted that the Tribunal has carefully used the term may for the appellant, and the responsibility was placed on Revenue to examine the documents which were available with the Department. The department could have obtained the copy of the relevant ledgers, invoices etc., from the consignees through the jurisdictional Range officers. This has not been done by the adjudicating authority which clearly shows that he has not followed this Tribunal s remand order in letter and spirit. The Revenue has failed miserably to lead any evidence despite specific orders by this Tribunal. Secondly, having considered the issue on merits, we are of the firm opinion that the appellant acted as an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsignees. Therefore, in terms of Rule 2(I)(d)(v) of Service Tax Rules, 1994, the consignees were liable to make payment of service tax on freight amount paid to transporter for transportation of coal. The Department, however, contended that the appellant is liable to pay service tax on transportation charges paid to transporter. Consequently, the Commissioner, Raipur issued the show cause notice dated 23.01.2008 and vide Order-in-Original No. Commr./RPR/71/2008 dated 22.08.2008 dropped the proceedings initiated against the appellant. Against the aforesaid order dated 22.08.2008, the Department preferred an appeal before the Tribunal. The Tribunal passed the order no. ST/A/705/2012 CU(DB) dated 21.11.2012 wherein the matter was remanded for a fresh decision after giving opportunity to the appellant to prove that service tax on all the impugned instances has been paid by the buyers of coal. The Tribunal also directed the adjudicating authority to record his findings for each contract separately, considering the evidence available with the Department and the evidence that may be submitted by the appellant. The present appeal is filed against the order passed by the Commissioner. 3. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tered with M/s Vandana Global Ltd., Raipur, it is evident that transportation charges from Gevra/Dipika to washery is @ Rs. 270/- PMT by CPCBL nominated transporter. This establishes the existence of the transporter nominated by the appellant. However, for arranging the transportation of raw coal, the appellant had worked only as agent/intermediary. The appellant entered into a Memorandum of Understanding on 15th September, 2004 with the transporter M/s Jai Jagdish Transport, Bhilai. A perusal of the said MOU, establishes that the appellant (CPCBL) was working as an agent of the consignees. The appellant had maintained proper account regarding recovery of freight amount from the consignees and payment made to the transporter. The learned counsel relied on the instance wherein the Superintendent, Range Service Tax, Rishi Bhawan, Bilaspur had enquired from M/s Gupta Metallics & Power Ltd., Nagpur regarding deposition of service tax on transportation of coal during 2007-08. The said buyer of coal vide letter dated 03.10.2009 had confirmed the deposition of service tax. Another example cited was the letter written by Superintendent, Range Service Tax, Rishi Bhawan, Bilaspur wherein M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Floor, Main Road, Samta Colony, Raipur 228564 Total (I) 4282718 II UNDERTAKING SUBMITTED BY THE FOLLOWING CONSIGNEES S. No. Name of Consignee (buyer of Coal) Confirming Service Tax deposition (involved in the impugned matter) Rs. 1. G.R. Sponge Plot No. 102, Phase-II, Siltara, Raipur 97407 2. Ultratech Cemco Ltd. Hirmi Cement Works, Hirmi Raipur 148286 3. Gopal Sponge & Power Pvt. Ltd., Phase-II, Siltara, Raipur 78985 4. Baldev Alloys Pvt. Ltd., Sec-7, Near Sant Gyanneshwar School Ground, Opp. Chugani House, Raipur 121847 5. Shree Nakoda Ispat Ltd., Near Railway crossing Mowa, P.O. Shankar Nagar, Raipur 305318 6. Nav Duga Fuel P. Ltd., 5, Laxmipur-Jagatpur, Opp. Carmel School Lane, Raigarh 1700 7. Shree Virangana Steels Ltd., SS-3, Golden Palace, Nagpur 273664 8. Godawari Power & Ispat Ltd., Siltara Raipur 1464537 9. Nutan Ispat Ltd., Kharora Road, Post-JaroudaDistt.-Raipur 30478 10. Sunil Sponge P. Ltd., Ind. Area, Siltara, Raipur 295797 11. Ultratech (Grasim) Cement Ltd., Grasim Vihar BalodaBazar (C.G.) 258976 12. S.K. Sarawagi Co. Pvt. Ltd., Phase-II, Siltara, Raipur 83116 13. N R Sponge Pvt. Ltd. Siltara, Raipur 57504 14. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear terms that the work orders or contracts are entered into by the appellant wherein the rates are quoted as per the negotiated terms with different buyers in regard to the contractual job of transportation cost of raw coal from the mines to the washery. Accordingly, the responsibility of transportation of coal was on the appellant. The appellant had appointed the transporter and paid the transporter the actual transportation cost for each consignment. The invoice was raised by the appellant as per the contractual terms/rates. The contracts were made on principal-to-principal basis and not on agency basis since an agent cannot incur any profit or loss on his own account in an agency-principal relationship and also no fiduciary relationship exists between the appellant and the buyer so far as transportation activities are concerned. The appellant doesn't maintain any account nor are they submitting the accounts to show the actual transportation cost to the buyers nor the buyers are entitled to supervise the accounts of the appellant, regarding the actual transportation cost. Therefore, the appellant cannot be treated as an agent of the buyers of washed coal, and the business relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case afresh. So we set aside the order and remand the matter for a fresh decision in this matter after giving proper opportunity to the respondent to prove that service tax on all the impugned instances has been paid by the buyers of the cool. The adjudicating authority should record his findings for each contact separately considering the evidence available with revenue and the evidence that may be submitted by the respondent. 11. Appeal is disposed off in above terms." 12. From the above it is apparent that the Tribunal had directed the adjudicating authority to examine the evidence available with the Department as well as the evidence that may be submitted by the appellant, to verify the claim that the service tax on transportation had been paid by the buyers/consignees of the coal. The Tribunal in the remand order has observed that if the service tax for transportation from mines to washery is paid by the buyer of the coal, then there is no liability on the appellant. The impugned order has to be examined through the prism of the remand order. In para 17 of the impugned order, the adjudicating authority has noted that the appellant had paid transportation charges amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and as the ST-3 returns reflects only the consolidated total freight amount, it cannot be ascertained from the documents submitted whether the payment of service tax shown to have been paid is with regard to the same transportation expenses incurred for transporting the washed coal. He has given similar findings in the case of Vandana Global Ltd., Shri Harikrishna Sponge Iron Limited, Shri Bajrang Power and Ispat Ltd., Mahendra Sponge and Power (P) Ltd. etc., to reject the evidence submitted by the appellant. It is not known as to what additional evidence the adjudicating authority wanted to satisfy himself that the liability of service tax on such transportation of washed coal had been paid by the buyers/consignees. The Tribunal in its order has very clearly directed the adjudicating authority to consider the evidence available with Revenue and the evidence that may be submitted by the appellant. We find that the adjudicating authority has gone on to merely consider the challans submitted in respect of 9 consignees and undertaking on the letterhead by 18 of the consignees. The Tribunal had directed the adjudicating authority to examine the documents available with Revenue, such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rejected the evidence in a mechanical manner. We find that in similar circumstances in the case of M/s Angiplast Pvt. Ltd., Vs Commissioner of Service Tax, Ahmedabad [2013 (32) STR 628 (Tri-Ahmd) has held: "8. On perusal of the records, I find that there is no dispute that the amount of service tax liability which is contested for the appellant is in respect of the services rendered by M/s Naranji Peraj Transport Co., M/s Pathik Roadlines and Transport Corporation of India. On perusal of the certificate issued by these transport companies, as an page numbers 36, 37 and 38, I find that the transporters have categorically stated that this service tax liability for the invoices raised on the appellant has been discharged by them and they had also mentioned the service tax registration number and PAN number in their certificates. As against such documentary evidences, the first appellate authorities findings as to no authentic documentary evidence has been produced, seems to be incorrect. Since the certificate clearly indicate the service tax registration number, the lease that could have been expected from the revenue was to call for the details from the concerned jurisdictional s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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