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TMI Blog2023 (11) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... clear findings whether right to possession and effective control has been transferred or otherwise. These are the main factors which decide whether the service falls under the supply of tangible goods for use or otherwise. Therefore, this aspect needs to be reconsidered. The appellant have claimed that service in question is classifiable under GTA service. In this regard we find that under an agreement with ONGC, the appellant is supplying trucks which are used for inter-location movement, i.e. transportation of ONGC s materials including Oil field equipment, machinery, mud-chemical etc. in the Oil field on the condition prevailing at the work sites of ONGC. As regard the said transaction appellant strongly argued that the ONGC is payin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2/2014 AHM-SVTAX-OOO-APP-372-13-14 dated 26.02.2014 July 2010 to March 2011 5,70,048/-- 2. ST/11685/2013 46/2013(STC)/SKS/Commr.(A)/Ahd dated 18.03.2013 April 2011 43,456/- 3. ST/11711/2014 AHM-SVTAX-000-APP-372-13-14 dated 26.02.2014 16.05.2008 to 30.06.2010 13,19,272/- 2. The brief facts of the case are that Appellant is supplying Trucks to ONGC under contract for inter-locational movement of ONGC material. The appellant has classified the services under Goods Transport Agency . ONGC has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chartered Accountant, appearing on behalf of the appellant submits that Appellant has given seven trucks to ONGC, which are registered as goods carriage under provisions of the Motor Vehicles Act, 1988. The Appellant is paying Goods Tax under carriage of Goods Taxation Act. This means trucks are goods carriage. The trucks are used for transportation of goods as per order of ONGC by road as per distance. Since all the conditions of the definition of taxable service of GTA define under Section 65(105)(zzp) of Finance Act, 1994 and definition of Goods Transport Agency Services under Section 65(50b) of Finance Act, 1994 are satisfied, the tax was correctly paid by the ONGC and cannot be subjected to tax again in the hands of appellant under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant entered into agreement on 24.04.2008. The responsibility of payment of Service was decided based on the service existing as on 24.04.2008. Appellant has entered into agreement for three years from 24.04.2008 to 23.04.2011. The appellant cannot be considered liable for payment of Service tax which was not existing at the time of entering into agreement. 6. He also argued that in the CBEC circular dated 29.02.2008 list of machinery is mentioned. This list does not include vehicles meant for transport of goods because these are covered under transport of goods by road service. 7. He further submits that in case of appellant, possession of the goods shall be said to be transferred to ONGC as per the agreement. Right of possession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent category. 9. He further submits that the allegation of the department that appellant has not paid VAT on the transaction with ONGC. Therefore services rendered are covered under the category of Supply of Tangible Goods Service . This contention of the department is based on misconception that if VAT is paid then no service tax and if VAT is not paid then service tax is payable under the category of supply of tangible goods for use . There is no such requirement in the act that in order to classify a service under the category of supply of tangible goods services, VAT must be paid. 10. Without prejudice, he further submits that if appellant is liable to pay service tax the same is required to be calculated in an inclusive ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant is supplying trucks which are used for inter-location movement, i.e. transportation of ONGC s materials including Oil field equipment, machinery, mud-chemical etc. in the Oil field on the condition prevailing at the work sites of ONGC. As regard the said transaction appellant strongly argued that the ONGC is paying service tax under the category of Goods Transport Agency and they are providing GTA services. We agree with the submission of the ld. Chartered Accountant that no double taxation is permissible under the law, subject to the decision that under which category the service in question legally falls. If the Service Tax has already been paid by the M/s ONGC, then the same cannot be demanded again. However, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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