9911796707
TMI Blog2024 (5) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... the reverse charge basis should have been refunded. There is no scope of double taxation under the statute. The demand made in the present case after noting the payment of tax at the hand of service recipient, the same transaction goes contrary to Article 265 of the Constitution and hence cannot be sustained. The Tribunal set aside the impugned order and allowed the appeal filed by the appellant with consequential relief, noting that the demand of service tax on merits could not be sustained. Issues of extended period of limitation, demand of interest, and penalties imposed were deemed irrelevant. - MR. P.K. CHOUDHARY, MEMBER (JUDICIAL) AND MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) Shri Gopal Mundhra, Advocate for the Appellant Shri A.K. Choudhary, Authorized Representative for the Respondent ORDER The present appeal has been filed by the Appellant assailing the Order-In-Original No. 18-19-PrCommr-ST-Noida-2020-21, dated 18.08.2020. By the order, learned Commissioner, CGST, Noida has held as follows:- ORDER A. Show Cause issued vide C. No. V(15)Adj./Noida/CGST/Pranish/06/2019/1866 dated 23.04.2019 for the period April, 2015 to March, 2016: (i) I confirm the demand of the Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the sides and perused the appeal records. 3. The period involved in the present appeal is from April 2015 to June 2017. We find that for the earlier period i.e. from October 2010 to March 2015, in the Appellant s own case, on the self same issue, this Bench of the Tribunal, in Service Tax Appeal No.70692 of 2017 being Final Order No.70183 of 2023 dated 09.11.2023 allowed the appeal of the Appellant. The relevant paragraphs of the Tribunal s order dated 09.11.2023 are reproduced below for ready reference:- 4.3 In the present case one of the most important fact for determination of the liability to payment of service tax is the nature of transaction that is in dispute. Undisputedly, appellant was issuing consignment notes to cover the transportation of the goods from premises of service recipient to various points and for such transportation he was paid tax on the fixed amount and variable amount, nature of payment will not alter the nature of transaction. The transaction continues to be governed by the documents made in this regard which are the consignment notes. These consignment notes clearly established that the service provided by the appellant was the services of GTA and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... note. 14. In view of the above discussions and the decisions cited (supra) and taking into consideration the essential requirement of issuance of consignment note , in order to attract the definition of Goods Transport Agency , we hold that the transport contractors rendering the coal transportation services in mines cannot be said to be Goods Transport Agency and therefore, their services cannot be made amendable to levy of service tax in the category of transportation of goods by road services . Hence, the impugned demand of service tax, interest and penalty cannot sustain and therefore, the same is set aside. In view of the above, we find that the findings made by the Ld. Commissioner cannot be interfered with and hence, the demand has been rightly dropped in the impugned adjudication orders. 4.4 On sample basis we take up for examination one of agreements dated 23.07.2010 made between the INOXAP and the appellant. Various conditions of the agreement which support the case for holding that these transactions are of transport of goods are reproduced bellow:- a. The Appellant is transport contractor and is engaged in business of carriage of goods (clause B); b. In consideration A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all times. The maintenance and repair of the Lorry Chassis is the responsibility of the Appellant (Clause 8.XIX). o. The VITT s attachments and fittings mounted/ attached on/ to each of the vehicle/ prime mover was at all times the property of INOXAP. Appellant was responsible for its safety and was responsible and liable for return of the VITT s attachment and fittings to INOXAP in good condition, on expiry or sooner termination of the agreement (Clause XXI, XXII, XXIII). p. Appellant was responsible to ensure the delivery of goods loaded on the lorry at destination within transit time as agreed mutually with INOXAP. In case of delay which is not explained properly penalty was impossible on the appellant (Clause 8.XXIV) q. The Appellant should ensure that the vehicles are running on round the clock basis and will suitable arrangement of advances to the drivers for diesel and other expenses for each trip (Clause 8.XXVII). r. The Appellant is required to submit to INOX the bills for transportation in prescribed format (Clause 10). s. The Appellant is responsible for all statutory requirements like provident fund, ESIC etc for the drivers and cleaners engaged by them for running th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any consignment, shall be limited to such amount as may be prescribed having regard to the value, freight and nature of goods, documents or articles of the consignment, unless the consignor or any person duly authorized in that behalf have expressly undertaken to pay higher risk rate fixed by the common carrier under section 11. (2) The liability of the common carrier in case of any delay up to such period as may be mutually agreed upon by and between the consignor and the common carrier and specifically provided in the goods forwarding note including the consequential loss or damage to such consignment shall be limited to the amount of freight charges where such loss, damage or delay took place while the consignment was under the charge of such carrier: Provided that beyond the period so agreed upon in the goods forwarding note, compensation shall be payable in accordance with sub-section (1) or section 11: Provided further that the common carrier shall not be liable if such carrier proves that such loss of, or damage to, the consignment or delay in delivery thereof, had not taken place due to his fault or neglect or that of his servants or agents thereof. From the above referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in clause 11(b) are on the basis of diesel prices of Rs. 34.13 per litre. In case of any variation in rates of diesel the transportation charges payable shall be increased by Rs. 0.58 per km for each Re. 1.00 of increase in diesel rates. 22. You will carry out all operation and maintenance activities at your cost. You will maintain all vehicles used for providing the services under this agreement in good working condition with periodical servicing and repair. 26. Unloading Time : The Ready Mix Concrete is a product which has a low setting time and in case if material is not unloaded within 4 hours of loading time, then vehicle driver should inform the Company Representative and follow his instructions regarding diversion/unloading of the material, so that setting of the material is avoided. In case of setting of the material is bowl unit for the above reasons, the cost of removing the material will be borne by the company. But in case delay is on account of transit time due to fault of driver then cost of removing the material from bowl will the borne by you. 32. Your drivers and cleaners/helpers shall take all precautions to ensure that the material loaded in the Bowl i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... auses (a), (b) and (c). Declared services have been enumerated in Section 66E of the Act. Sub-clause (f) of Section 66E, which is relevant for the purposes of the controversy involved in this appeal, is as follows :- (f) transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods; 19. The appellant claims to be transporting RMC in vehicles under the contract awarded by the customers, particularly Grasim Industries Ltd. and Ultratech Cement Ltd. This transportation of RMC takes place in transit mixers from the premises of the customers on the basis of work orders issued. A perusal of the work order dated 1 April, 2008 issued to the appellant by Grasim Industries Ltd. indicates that the appellant was required to load RMC in the vehicles of the appellant and transport the same to the required destinations where it was required to be unloaded. The transportation charges payable to the appellant were in two parts. The appellant was to receive Rs. 140/- per cum for the quantity of RMC transported during the month. Under the second part, the appellant was to receive Rs. 20.34 per km for distance travelled in the transportation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsported during a calendar month and a certain amount per km for the distance travelled for transportation of RMC during the month. 22 . It is for this reason that the appellant had contended that the activity of transportation of RMC by road falls under the taxable service GTA. However, this contention of the appellant has not been accepted by the Commissioner for the reason that clause 12 of the work order deals with a minimum quantity of RMC to be transported per month per vehicle. According to the Commissioner, it cannot be said to be a case of transportation of goods by road by a goods transport agency because in the case of transport of goods by road the service recipient books a vehicle for transportation of goods and pays freight for such booking for the transportation of goods . The Commissioner failed to appreciate that under the work order, the appellant was required to transport RMC for which purpose the appellant was required to load RMC in the vehicles of the appellant and transport the same to the required destination and unload it. The requirement under the work order that the appellant should have a fleet of vehicles, adequate enough to transport 9000 M3 RMC every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period is that the activity should be performed by the GTA for another. It cannot be doubted that the appellant has undertaken the transportation of RMC for the mine owners. The fourth condition of the post-negative period is that the activity should performed for a consideration. It cannot also be doubted that the appellant is receiving consideration from the service recipient as is clear from the invoices raised by the appellant to the service recipient. 28 . Thus, the appellant has been rendering GTA service by transporting RMC from one place to another as per the directions of the service recipient. The finding to the contrary recorded in the impugned order by the Commissioner that the appellant was not performing GTA service but was performing STG service cannot be sustained. 29 . It is, therefore, not necessary to examine the other contentions raised by the Learned Counsel for the appellant. The impugned order dated 15 January, 2016 is accordingly, set aside and the appeal is allowed. 6. From the above decision of the principal Bench of this Tribunal, it can be seen that the facts such as transportation of RMC by similar vehicles for M/s. Ultratech Cement Limited for transpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
