9911796707
TMI Blog2024 (5) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... e Hon ble Apex Court was in regard to the demand under Business Auxiliary Services and not GTA services. On perusal of the records, it is seen that the appellant has now produced documents to show that M/s. Shiva Cargo Movers Ltd. has not issued any consignment note. The said transporter has issued only invoices periodically to collect transport charges. Thus, taking note of the decisions in the case of Lakshminarayana Mining Company [ 2019 (7) TMI 917 - CESTAT BANGALORE ] and Ramco Cements Ltd. [ 2023 (9) TMI 1257 - CESTAT CHENNAI ] we are of the considered view that the appellant has to be given an opportunity to furnish documents and evidence that M/s. Shiva Cargo Movers Ltd. is not a Goods Transport Agency and also that no consignment notes were issued. The matter therefore requires to be remanded to the adjudicating authority who is directed to consider afresh refund claim of the appellant. The adjudicating authority shall decide applicability of the above cited decisions of the Tribunal independent and uninfluenced by the decision of Tribunal in the appellant s own case for the earlier period. Thus, the impugned order is set aside. The appeal is allowed by way of remand to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the definition of goods transport agency and that the appellant has therefore correctly discharged the service tax under reverse charge basis. It was also observed by the department that vide Notification No.35/2004 dated 03.12.2004, M/s. Shiva Cargo Movers Ltd., being a company registered under the Company s Act is liable to pay service tax for transportation of goods on road. 4. It is submitted by the Ld. Counsel that the department has not considered the issue correctly. M/s. Shiva Cargo Movers Ltd., is not a Goods Transport Agency, though they are the group company of the appellant. M/s. Shiva Cargo Movers Ltd., own a fleet of tanker lorries and these vehicles were hired for transportation of the goods of the appellant. M/s. Shiva Cargo Movers Ltd., did not issue any consignment note. They have merely issued invoices showing the vehicle number and the cost of transportation. The said document is not a consignment note and is not a document in accordance of Rule 4 B of the Service Tax Rules 2004. This being so, M/s. Shiva Cargo Movers Ltd., is not liable to pay service tax and the service tax paid by the appellant under protest on reverse charge basis ought to be refunded. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant would be able to furnish documents to establish that only hire charges were paid for transport of the goods and that M/s. Shiva Cargo Movers Ltd., being the owner of the vehicle is not a goods transport agency. Only if the service is rendered by a goods transport agency, the levy of Service tax would be attracted. Notification no.36/2004 - service tax dated 31.12.2004 relied by the Tribunal for the earlier period merely states that if the consigner or consignee falls within the clause (vi) would come within the purview. In the present case, as there is no consignment note issued by M/s. Shiva Cargo Movers Ltd., the said notification would not apply. 8. The Ld. AR Shri Satyanarayanan appeared and argued for the department. The findings in the impugned order was reiterated. 9. Heard both sides. 10. The issue that arises for consideration is whether the appellant is eligible for refund of the service tax paid by them on the charges paid for transportation of goods. The taxable service of transportation of goods by road as under Section 65 (105) (zzp) reads as under: to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage . Good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed before the Hon ble Apex Court was in regard to the demand under Business Auxiliary Services and not GTA services. On perusal of the records, it is seen that the appellant has now produced documents to show that M/s. Shiva Cargo Movers Ltd. has not issued any consignment note. The said transporter has issued only invoices periodically to collect transport charges. Similar issue was considered by the Tribunal in the case of Lakshminarayana Mining Company Vs. Commr. Of Central Tax, Bengaluru South GST decided on 07.03.2019. The Tribunal had set aside the demand raised against the appellant therein, though the department alleged that the appellant is recipient of Goods Transport Agency Service. It was held that the transporter of goods was not a GTA and that appellant who is the recipient of service is not liable to pay service tax. The relevant paragraph reads as under: 1. This appeal challenges the demand of differential tax of Rs.92, 51, 572/- held as liable from M/s.Lakshminarayana Mining Company for the period from 1st January, 2005 to 30th September, 2006 as recipient of goods transport agency service , besides interest under Section 75 of the Finance Act, 1994 and impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. In the light of the above, it would appear that the activity performed for the appellant by transporters falls outside the ambit of Section 65(105)(zzp) of Finance Act, 1994 and is not taxable in their hands. 12. For the above reason, we set aside the impugned order and allow the appeal. 13. The Chennai Bench in the case of Ramco Cements Ltd. Vs. CCE, Tiruchirappalli, (supra) had occasion to analyse the very same issue and held that the recipient of service of transportation by individual transporters owning vehicles would not come within the levy of Section 65 (105) (zz) of the Finance Act 1994. In the said case the Tribunal observed that notification no. 34/2004 Service Tax dated 03.12.2004 is applicable only for goods transport vehicles used by goods transport agencies. The demand was set aside. After considering the facts and taking note of the decisions in the case of Lakshminarayana Mining Company and Ramco Cements Ltd., we are of the considered view that the appellant has to be given an opportunity to furnish documents and evidence that M/s. Shiva Cargo Movers Ltd. is not a Goods Transport Agency and also that no consignment notes were issued. The matter therefore requ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
