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TMI Blog2024 (6) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments reveal that none of them is talking about taking truck/tanker, on hire, for transporting branded fuel of the oil companies. The amount in question received by the appellant is specifically mentioned as the freight charges. There is no hire/rent agreement for taking truck lorries from the appellant for the purpose. The documents rather reveal that the appellant has stepped into the shoes of the main contractors who had agreed to transport fuel in truck/tankers for the oil companies. The Ld. Commissioner denied the benefit of above notification on assumption that the recipient of the services i.e M/s FCPL is not a Goods Transport Agency. However, in the present matter FCPL has issued consignment notes/ LRs for transportation of goods, hence M/s FCPL is clearly covered under the definition of Goods Transport Agency Service and if at all there is any Service Tax liability it is on the service recipient of FCPL i.e. M/s Reliance Industries Ltd. In view of this there are no reason for denying the benefit of the exemption under this entry to the appellant. CESTAT Ahmedabad in the case of CHARTERED LOGISTICS LIMITED VERSUS C.C.E. -AHMEDABAD-II [ 2023 (7) TMI 883 - CESTAT AHMEDABAD] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he perusal of these documents department observed that the appellant, in addition to providing construction services as registered contractor in PWD Department, is also a partner in petrol pump namely, M/s. Hari Priya Filling station. The appellant had provided trucks to the said firm and to other firms/persons/organizations as well and have received payments for the same. The said payments are reflected as freight in their profit and loss account. The copy of agreement dated 26.12.2013, as submitted by the appellant, was the one entered between M/s. Bharat Petroleum Corporation Ltd. (BPCL) and M/s. Shreenath Co. Similar was the agreement between M/s. Essar Oil Ltd. and M/s. Vishnu Priya Filling Station dated 01.10.2013 for transportation of branded fuels ex Udaipur depot into tank lorries . These companies have further awarded the work of transportation of BPCL/Essar for transportation of the said branded fuel of these companies as per freight charges mutually agreed. Department observed that neither M/s. Vishnu Priya Filling Station and M/s. Shreenath Co., the contractors of BPCL for transportation of branded fuel, nor the appellants, the subcontractor for the same purpose, were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and loss account. The appellant was using its truck lorries/tankers for transportation of petroleum products instead of giving its tanker/trucks on hire to. M/s. Shreenath Co. and M/s. Hari Priya Filling station. They were not even paying any rent for getting truck lorries/tankers from the appellant. Both these companies were contracted by BPCL/Essar for the purpose. They sub-contracted the activity with the appellant. The sub-contracting does not change the nature of the activity i.e. transportation of branded fuel. The contracts between appellant, sub-contractor and the said companies is absolutely silent about taking the trucks/tanks of the appellant on hire. Thus, the activity performed by appellant was of transportation of goods by road. The only flaw is that the consignment note though was issued by the appellant in favour of M/s. Vishnu Priya Filling Station but the same was not issued in the case of transporting fuel on behalf of M/s. Shreenath Co. and on behalf of M/s. Hari Priya Filling station. The nature and intent of the contracts in case of three of these companies is otherwise same. The demand against M/s. Vishnu Priya Filling Station has already been dropped. Based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Representative has relied upon the decision in the case of East India Minerals Ltd. Vs. Commissioner of Central Excise, Customs Service Tax, Bhubanswar-II reported as 2021 (44) GSTL 90 (Tri.- Kolkata) . It is impressed upon that the activity of the appellant has rightly denied to be the activity of transportation of goods. 4.1 The other contention of the appellant that they are eligible for exemption under Notification No. 25/2012 is also not sustainable for the same reason of absence of the consignment notes. In the case of contractor M/s. Vishnu Priya Filling Station, since consignment notes were issued the adjudicating authority has already dropped the demand extending the benefit of the said notification. But for remaining two contractors the demand therefore has rightly been confirmed. 4.2 While submitting on the ground of limitation and about imposition of penalty, it is submitted that the appellant had filed Nil tax returns for the period 2013-14 to 2016-17. The correct taxable value was also not disclosed to the department. The appellant on being pointed out had rather made payment of certain amount of service tax. The said payment is nothing but the admission of appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll, times of the permits issued and those permits were also to be submitted at the time of agreement itself. The tanker or lorries were required not to be black listed by any of the oil industries nor to be under the contract with other oil companies. 7. We further observe that the said M/s. Shreenath Co., subsequent to the above discussed agreement with BPCL awarded the work of transportation of BPCL goods (branded fuel) on their behalf to the appellant vide a letter dated 20.06.2014. It has been specifically mentioned in the said letter that M/s. Shreenath Co. had been awarded with the work of transportation of BPCL goods (branded fuel) and as per the appellants consent the truck/tanker/lorries of appellants also got approved by BPCL in the said work order itself. The work of transportation of BPCL goods was awarded by M/s. Shreenath Co. to the appellant as per freight charges mutually agreed based on per kilometre/per kilolitre basis depending upon the charges agreed by BPCL. The perusal of both these documents pursuant to these contracts clarifies that the appellant had transported branded fuel of BPCL for M/s. Shreenath Co. against the payment received as freight charges. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Finance Act, 1994 during the period in dispute. 10. To adjudicate the correctness we look into the Section 66D of the Act and observed that clause (p) of this section reads as follows: Section 66D: Negative list of services The negative list shall comprise of the following services, namely: (a) xxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxx (C) xxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxxxxxxx (p) Services by way of transportation of goods- (i) by road except the service of (A) a goods transport agency (GTA); or (B) a courier agency 11. The bare perusal makes it clear that if any person is providing services of transport of goods by road, and his is neither covered under the statutory definition of GTA, nor under courier agency, then he is not liable to pay any service tax on such transportation. The definition of GTA is given under Section 65B(26) of the Finance Act. Accordingly to which, a person can be said to be Goods Transport Agency, it the person provides services in relation to transportation of goods by road and issues the consignment note. The transportation services provided by GTA against consignment note are taxable but not the transportation of goods by any other person. This Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negative list/list of exempted services in terms of Section 66D(p)(i)(A) of Finance Act. In view of this discussion the findings in Order-in-Original under challenge are held erroneous. Therefore the tax liability confirmed upon the appellant vis- -vis transporting fuel without issuing consignment notes is held liable to be set aside. However, the demand against the amount received from M/s. Vishnu Priya Filling Station is held to have been wrongly dropped. However, department has not filed any appeal against the said part of the order, we refrain ourselves to reverse the same, it being have attained finality. 14. We observe from the order that the demand as was proposed with respect to incentives received by the appellant from the oil companies, on miscellaneous receipts including bad debpts, written off, balances return off, miscellaneous income and other income totalling to an amount of Rs.1,92,03,908/- has already been dropped by the appellant holding all those income to have been received by the appellant towards the trading activities which does not invite service tax. Department is not in appeal against the said part of the order. We also find no reason to differ from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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