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TMI Blog2023 (10) TMI 1114X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) TMI 1196 - ANDHRA PRADESH HIGH COURT] and the decision of the Tribunal in Ultratech Concrete [ 2018 (9) TMI 1204 - CESTAT CHENNAI ] - These two decisions would not come to the aid of the department for the reason that the contracts involved in the two decisions, as is clear from a perusal of the decision, is for hiring of vehicles for transportation of transit mixtures and not for transportation of RMC. The order dated 16.03.2018 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside - Appeal allowed. - SHRI DILIP GUPTA, PRESIDENT AND SHRI P.V. SUBBA RAO, MEMBER (TECHNICAL) Ms. Poorvi Asati, Advocate for the appellant. Ms. Jaya Kumari, Authorized Representative (DR) for the Department ORDER M/s Gunesh Logistics [appellant] has filed this appeal to challenge the order dated 16.03.2018 passed by the Commissioner (Appeals) upholding the order dated 28.12.2016 passed by the Additional Commissioner confirming the demand of service tax with penalty. 2. The appellant claims that it is engaged in the activity of transportation of Ready-Mix Concrete [RMC ] for its customer M/s Ultratech Cement Ltd. through the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2013 and 01.04.2014 issued by Ultratech Cement to the appellant. Learned counsel also submitted that the issue involved in this appeal has already been decided in favour of the appellant in the case of the appellant in Gunesh Logistics versus Commissioner of Central Excise Service Tax, Jaipur I [ 2019 (9) TMI 1419 CESTAT New Delhi ] , which was for the previous year period of 2009-2010 to 2012-2013, wherein it was held that the appellant was engaged in the activity of transport of goods namely RMC, which would be covered under the category of goods and transport agency. 7. Ms. Jaya Kumari, learned authorized representative appearing for the department has, however, supported the impugned order and has placed reliance upon the decision of the Andhra Pradesh High Court in G.S. Lamba Sons vs. State of Andhra Pradesh [2015 (324) E.L.T. 316 (A.P.)] and the decision of the Chennai Bench of the Tribunal in CST, Chennai vs. M/s Ultratech Concrete [ 2018 (9) TMI 1204 CESTAT Chennai ] . 8. The submissions advanced by the learned counsel for the appellant and the learned authorized representative appearing for the department have been considered. 9. To apprecia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Registration or Year of Manufacturing, whichever is earlier, and B) Rs. 18.10 per Km (based on 1.55 KM/Ltr + Rs. 0.95p per Lubricants) for distance travelled during the month in the transportation of our Ready Mix Concrete. This rate is valid for first 2 years from the date of deployment and the same will be revised from 3rd year onwards based on 1.72 Km/Ltr. 10. The basic terms of the second work order dated April 01, 2014 for transportation of RMC remains the same. 11. A perusal of the aforesaid work order clearly shows that it is a work order for transportation of RMC in vehicles from the plant of the appellant at Jaipur and responsibility has been cast upon the appellant to ensure transportation and delivery of the material within the time specified. The appellant is also required to pay transportation charges at Rs. 114/- per CuM for actual quantity of RMC transported during a calendar month. Of course, the work order also requires the appellant to deploy a fleet of 6 MB capacity of vehicles mounted on suitable chassis in numbers adequate to transport 1490 MB of RMC. 12. Learned counsel for the appellant is correct in submitting that the issue involved in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the appellant and thereafter transport the RMC to the required destination and unload it. The work order does not speak of hiring the vehicles of the appellant. In fact the appellant was required to keep all its vehicles used for providing the service under the agreement in good working condition with periodical service and repair. The Commissioner has, however concluded from a perusal of the work order that the recipient of service i.e. M/s. Grasim Industries Ltd. and M/s. Ultratech Cement Ltd. needed a large number of vehicles for transportation of RMC from their plant to the premises of the customer and they have entered into an agreement for deployment of 6M3 capacity vehicles which can be used by the recipient and serve as per their requirement. The Commissioner, therefore, observed that the appellant had given on hire vehicles to the service recipient for use in the transportation of RMC from its plant to the premises of the customer though the right to possession and effective control over the vehicles remained with the appellant and it had to deploy manpower to operate and control the vehicles. 21. This conclusion drawn by the Commissioner is a patently wrong und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to examine all the conditions of the work order but the finding is based on an assumption that vehicle was hired for transportation of RMC. 23. The Commissioner also fell into an error in assuming that if a minimum load of 745 cum per month per vehicle is not loaded, then too the appellant would be entitled to payment on this minimum quantity to conclude that in this manner payment would also be made for goods that have not been transported and no consignment note would have been issued for the same. 24. Under Rule 4B of the Service Tax Rules, 1994 a consignment note is a document issued by a GTA reflecting the name of the cosigner and consignee, registration number of the goods carried in which the goods are transported, details of the goods transported, details of the place of origin and the destination and the person liable for paying the service tax. The consignment notes issued to by the appellant which are contained from the pages 112 to 130 of the appeal paper book contain all the particulars as mentioned in Rule 4B and the issuance of the consignment note has not been disputed in the show cause notice. 25. It would be seen from that pre-negative list period prior ..... X X X X Extracts X X X X X X X X Extracts X X X X
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