9911796707
TMI Blog2009 (6) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... e service tax under section 68(2) of Chapter V of the Finance Act, 1994. The assessee is paying the service tax by virtue of the provisions made under rule 2(1)(d)(v) of the Service Tax Rules, 1994. The assessee had availed the abatement of 75 per cent of the gross value of the service of Goods Transport Agency for the payment of the service tax under the exemption Notification No. 32/2004-ST, dated 3-12-2004. 2. Based on audit point, the show-cause notice dated 28-6-2006 was issued to the assessee on the ground that the assessee had availed the benefit of exemption Notification No. 32/2004-ST, dated 3-12-2004 during the period from February 2005 to October 2005 without obtaining a declaration from Goods Transport Agency concerned regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences within 45 days from 21-9-2007 to show that they fulfilled the condition of Notification No. 32/2004. 6. The adjudicating authority re-examined the issue and observed that though the assessee submitted before the Tribunal that the goods transport agency who have rendered the services to them have fulfilled the conditions and that they will be in a position to prove the same if given a chance, the assessee could produce declaration regarding non-availment of Cenvat credit in respect of only four transporters only. The adjudicating authority further observed that as per CBEC Circular No. 97/08/2007, dated 23-8-2007, "the service provided by a Goods Transport Agency (GTA) for which the consignor or the consignee is made liable to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the minimum prescribed and once there is a failure, the penalty is mandatory. He also submits that the discretion available is only to reduce or increase the penalty between Rs. 100 per day or Rs. 200 per day. He submits that once the appellate authority had reached the conclusion that penalty is imposable under section 76, he should have imposed the minimum prescribed penalty under section 76. In support of this contention he cites the following decisions of the Tribunal: 1. AnkleshwarTalukONGCLand Looser Travellers Co.-Op. Society v. CCE [Order No. A/29/WZB/AHD./2009, dated 6-1-2009]. 2. Union of India v. Aakar Advertising [2008] 15 STT 256 (Raj.). 3. CCE & STC v. First Flight Couriers Ltd. [2008] 12 STT 127 (Kar.). 11. No one has ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
