9911796707
TMI Blog2009 (9) TMI 71X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods from any GTA, the impugned demand of Service tax, and penalties are liable to be set aside. - ST/620/2008 - 1149/2009 - Dated:- 25-9-2009 - S/Shri M.V. Ravindran, Member (J) and P. Karthikeyan, Member (T) S/Shri K. S. Ravi Shankar and K. S. Naveen Kumar, Advocates, for the Appellant. Shri M. Ravi Rajendran, DR, for the Respondent. [Order per: P. Karthikeyan, Member (T)]. - M/s. Lakshminarayana Mining Company, Bangalore (LMC) the appellants herein are engaged in the business of export of Iron Ore and are registered with the department as Goods Transport Agency (GTA). After due process of law, the Commissioner found that during the period 1-1-2005 to 30-9-2006 LMC had short paid Service tax of Rs. 92,51,572/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service provider and owner of the goods carnage or the operators of the goods carriage. As per the impugned order, the appellant had received services from goods transport operator. This activity did not attract levy under Goods Trans port Agency . As the appellant had discharged Service tax liability even before the issue of show cause notice, penalty imposed was illegal and contrary to ratio of judgments of the Supreme Court, Karnataka High Court and Tribunal. The Appellant relied on the judgment of Hon'ble High Court of Karnataka in the case of M/s. Toyota Kirloskar Motor Ltd. reported in 2006 (206) E.L.T. 1116 (Kar-HC) wherein the High Court had sustained the view expressed by the Tribunal that no penalty and interest liability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spread dispute and confusion, pending consideration before various authorities. Therefore, in terms of Supreme Court's decision in Jaiprakash Industries Ltd. v. CCE - 2002 (146) E.L.T. 481 (S.C.) extended period was not invocable. The department had not established existence of elements to justify invoking proviso to Section 73(1) of the Act; there was no evidence for mala fide intention to evade duty. The appellants seek to set aside the impugned order. 4. We have heard both sides. We find that the appellants paid service tax under the head CTA as recipient of GTA services in terms of Rule 2(1)(d)(v) of Service Tax Rules, 1994 during the material period. LMC received service of transportation of goods i.e. iron ore by the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 (215) E.L.T. 23 (Bom-H.C.) (b) M/s. Sai Machine Tools Pvt. Ltd. - 2006 (203) E.L.T. 15 (M.P.-H.C) 5.1 From the impugned order it is not obvious that the appellants had short paid Service tax by not paying tax due in certain cases during the material period or paid less tax in respect of all consignments for which it had incurred freight. In any case, we find that the Commissioner has not effectively countered the plea of the appellants that they had not received services from a GTA. The Commissioner has attempted to classify services received from goods transport owners/goods transport operators as GTA service defined under Section 65 (50b) of the Act. We find that the claim of the appellants that the impugned services were n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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