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TMI Blog2009 (3) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ice” necessarily should relate to the services actually rendered by the Transport Agency. The respondent has not actually rendered the said services; as a consignor he has not availed the credit of duty paid on inputs of capital goods for providing such taxable services; the respondent merely paid the tax which, in the normal course, should have been paid by the transport agency - Commissioner’s order denying the benefit of the Notification to the appellant is not correct. The appellants are rightly entitled for the benefit of the notification in terms of even the Board’s circular - ST/348/2008 - 686/2009 - Dated:- 18-3-2009 - Shri T.K. Jayaraman, Member (Technical) and Shri M.V. Ravindran, Member (Judicial) (Final Order No. 686/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taking such a view, there was a demand for differential amount of service tax. The show cause notice proposed penal action also. The Commissioner in the impugned order has stated that the appellant had not fulfilled the conditions of Notification No. 32/2004-ST and therefore they would not be entitled for this benefit. Hence, he confirmed the differential service tax. Interest was demanded under Section 75. However, penalties under Section 75 78 were dropped. The appellants are highly aggrieved over the impugned order. The following submissions were urged by the appellants. 3. The order passed by the Commissioner has been decided on the point not raised in the show cause notice. Hence it is liable to be set aside. According to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2008 (85) RLT 463 (CESTAT-Ahmd.) = 2008-9-STR-543-T-Ahmedabadhas confirmed admissibility of exemption under para 7.2 and para 8.5 of the order. The Govt. of India has issued Notification No. 13/2008-ST dt.1.3.2008 granting abatement which is excess of the amount in service tax calculated on the value of equal to 25% of gross amount charged by the GTA for the provider for the said taxable service. This was explained by Board under Circular DOF No. 334/1/2008-TRU dt. 29.2.2009 at para 7.2 about unconditional abatement of 75%. 4. The ld. DR reiterated the impugned order. 5. We have gone through the records of the case carefully. It is true that the appellants themselves are not Goods Transport Agency. However, they availed the se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RLT 571 (CESTAT-Ahmd.)= 2008 (9) STR 0530 (Tri-Ahmd.)has held as follows:- 5.1 I have carefully considered the submissions. The Commissioner (Appeals) has allowed the appeal after recording his findings which are as follows: 8. Besides, on going through the overall facts and circumstances of case, as also the phrase employed in the proviso (i) to the Notification No 32/2004-ST supra that 'such taxable service' refers to the Goods Transport Agency and not the appellants- consignees as in the instant cases and therefore, the availment of credit by the appellant-consignees does not put embargo over entitlement of 75% abatement for the purpose of discharging service tax liability on the transportation charges shown in the trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s; the respondent merely paid the tax which, in the normal course, should have been paid by the transport agency. The decision by the Commissioner (Appeals) is legal and proper. The following decision is also in favour of the assessee. M/s. Tuticorin Alkali Chemical Fertilizers Vs. CCE, 2007 (81) RLT 661 (CESTAT-Che.)=2007 (7) STR 672 (Tri.-Chennai). 6. In these circumstances, the Commissioner's order denying the benefit of the Notification to the appellant is not correct. The appellants are rightly entitled for the benefit of the notification in terms of even the Board's circular. Hence, the impugned order is set aside and we allow the appeal with consequential relief. (Pronounced in open Court.) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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