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TMI Blog2024 (8) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... EXCISE TIRUNELVELI COMMISSIONERATE, [ 2023 (9) TMI 1063 - CESTAT CHENNAI] where it was held that 'In the present case, the demand has been raised upon the appellant alleging that they are the recipient of services of goods transport agency services provided by the CHA. Admittedly, the appellant has not been issued a consignment note.' It was held in the case of AIMS Industries vs. CCE [ 2024 (1) TMI 721 - CESTAT AHMEDABAD] where it was held that 'Thus, it is categorically held that in case transportation made by vehicle operator (in the present case tractor trolley owners) and no consignment note was issued, the service cannot be held as goods transport agency service liable to Service Tax. Therefore, the impugned order is not sustainable.' Thus, it is settled that as per facts involved in the present case, applying the ratio of the above judgments, the demand under GTA service is not sustainable - the impugned order is set-aside and appeal is allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri Jigar Shah Shri Amber Kumarawat , Advocates for the Appellant Shri Sanjay Kumar , Superintendent ( AR ) for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be classified under GTA service. He further submits that the issue involved in the present case, the dispute is arising out of interpretation of statute therefore, the demand is also not maintainable on the ground of time-bar. 3. Shri Sanjay Kumar, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that the appellant have received transportation service in respect of supply of building material and in some of the cases the transporter itself has raised the bill for supply of material and not for transportation and in all the cases of transportation, there is no consignment note issued by the transporter. In one case there is supply of tangible goods which cannot be regarded as GTA service. As regards the major demand categorized under GTA service which are liable for service tax or otherwise, in number of judgments it has been held that even though there is transportation service but if no consignment note has been issued, the said service cannot be classified as GTA service. In this regard, we rely upon following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not issuing any consignment note. In such a situation, the original authority quoting letter and spirit of the statute observed that by not issuing consignment note the transporter had violated the provision of Rule 4B of the Service Tax Rules, 1994. We find that the reasoning followed by ld. Commissioner is devoid of merit. It is relevant to examine the concerned legal provisions : Section 65(105)(zzp) of the Act defines the taxable service as under : (zzp) to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage; Section 65(50b) of the Act defines goods transport agency as under: (50b) goods transport agency means any person who provides service in relation to transport of goods by road and issues consignment note, by whatever name called; It is clear that to be called goods transport agency a person should fulfil two conditions, namely, he should provide service in relation to transport of goods by road and issue consignment note, by whatever name called. In the present case, admittedly, no consignment note was issued by the goods transporter. The original authority held that the slip/challans issued for monitoring purposes by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), similar view was taken:- 7. A portion of the demand also has been raised under the category of GTA. The appellant has paid the freight expenses in connection with transportation of Cars to their customers. However, they have not issued any consignment notes which are necessary to identify the appellant as a goods transport agency. As per the views expressed by the Tribunal in the case of South Eastern Coal Fields Ltd. (supra), in the absence of consignment notes, the activity of the appellant cannot be classified under GTA service. Consequently, we set aside the demand under GTA service. 16. In the case of Bharat Swabhiman (Nyas) (supra), the Tribunal held as under:- 17. The next issue that remains to be decided is whether the appellant is liable to pay service tax on the freight amount paid by it on a reverse charge mechanism. 18. Goods transport agency service has been defined in Section 65(26) of the Finance Act to mean any person who provides service in relation to transport of goods by road and issues consignment notes, by whatever name called. In the present case, consignment notes have not been issued and so the activities cannot be said to be covered under goods trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking made to the entity that handed over the goods to the agency of responsibility for safe delivery at the stipulated destination. A consignment note also creates binding responsibility for each consignment. In the absence of any evidence of such responsibility having devolved on M/s. V.A. Enterprises and the issue of monthly bills does not, ipso facto, creates such liability and the impugned order is not at fault for having held that tax liability does not arise. 10. In view of the findings recorded in the impugned order which the appeal of Revenue is unable to controvert, the impugned order must survive. Accordingly, the appeal of Revenue is dismissed. Cross-objections also disposed of. 17.2 After appreciating the facts and following the above decisions, we hold that the demand of Service Tax cannot be sustained. The issue on merits is answered in favour of assessee. 18. The Ld. counsel has argued on the grounds of limitation also. We take note of the fact that the situation is entirely a revenue neutral as well as the fact that several audits have been conducted raising the objection of non-payment of Service Tax under GTA services. The Department had full knowledge about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial concerns engaged in the business of transportation of goods in a goods carriage by road. These facts were not in dispute. A couple of bills seen by him indicated that the tax liability was abated from the mutually agreed amount for transport of consignments. He held that goods transport agency themselves could be the owner of the trucks/operators. 5. The appellants had mis-declared the actual taxable value in the ST-3 returns. This warranted invocation of proviso to Section 73(1) of the Act. The plea that penalty was not justified since the appellants had discharged tax liability before issue of show cause notice, was rejected relying on the following judgments of the High Court : (a) CCE C Aurangabad v. Padmashri V.V. Patil S.S.K. Ltd. - 2007 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt: 4. This appeal was admitted to consider the following substantial questions of law : (i) Whether the order of the CESTAT, based solely on the speech of the Hon ble Finance Minister made while introducing the Finance Bill, 2004 and not as per the statutory provisions of law was right in holding that the Respondents were not liable to pay Service Tax under the category of GTA ? (ii) Whether the order of the CESTAT was right in holding that the Respondents were not liable to Service Tax under the category of Goods Transport Agency , contrary to the statutory provisions of law i.e., Section 65(105)(zzp), Section 65(50b), Rule 2(1)(d)(v) of the Service Tax Rules, 1994 Notification No. 35/2004-S.T. dated 3-12-2004 w.e.f. 1-1- 2005 and thereby setting aside the Order-in-Original dated 21-8-2008? Therefore the question that arises for consideration in this appeal is as to whether the assessees are liable to pay service tax or not under the category of Goods Transport Agency? An identical issue came up for consideration before the Division Bench of this Court in CEA No. 121/2009 and connected matters. This court by the order dated 23-3-2011 [2011 (23) S.T.R. 97 (Kar.)] came to the concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons, it is clearly evident that in order to constitute Goods Transport Agency , the provider of transportation service must issue the consignment notes or any other document by whatever name called. We find that the issue has already been examined in detail by the Tribunal, in Final Order dated 13-8-2014, in South Eastern Coalfields Ltd. v. CCE, Raipur 2016 (41) S.T.R. 636 (Tri. - Del.), the relevant portion is reproduced below :- ...5. If the transaction/service provided by the 24 transporters to the appellant fall within ambit of Goods Transport Agency service within the meaning of the aforesaid provisions, the appellant would be liable to tax though being recipient of the service is not contested by the appellant and it is conceded that under this taxable service, recipient of the service is liable to tax. The only issue canvassed is the one presented to the adjudication authority which did not commend acceptance namely, that since no consignment notes were issued by transporters, the services provided to the appellant fall outside the ambit of GTA. 6. The issue is no longer res integra. Learned Division Benches of this Tribunal in Birla Ready Mix v. C.C.E., Noida - 2013 (30) S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the services rendered by a goods transport agency in relation to the transportation of goods by road and road transport agency tasked with responsibilities that others connected with road transport are not, with consignment note being the point of difference. There is also no doubt that Rule 4B of the Service Tax Rules, 1994 lays down the contents of a consignment 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. 15. The appeal is allowed with consequential relief as per law. e) Similar view was taken by this Tribunal in the case of East India Minerals Ltd as per the following order: 13. We have carefully gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he activities of transportation of iron ore in the present case, do not fall under the GTA service in terms of Section 65(105)(zzp) of the Finance Act, 1994, nor the raising contractors fall under the definition of GTA as defined under Sec. 65(50b) of the said Finance Act. 16. In view of the above discussions, the impugned orders are set aside. The appeals filed by the appellant are allowed with consequential relief, as per law. In view of the above judgments, it is categorically held that in case transportation made by vehicle operator (in the present case tractor trolley owners) and no consignment note was issued, the service cannot be held as goods transport agency service liable to Service Tax. Therefore, the impugned order is not sustainable. 5. Hence, the impugned order is set aside. Appeal is allowed. (c) Chartered Logistics Limited vs. CCE 2023 (7) TMI 883-CESTAT 6.5 Accordingly, a person can be said to be Goods Transport Agency, if the person provides services in relation to the transportation of goods by road and issues the consignment note. From the above legal position, it clear that not all the person who transport of goods by road are qualified as Goods Transport Agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re given below: Narendra Road Lines Pvt. Ltd Vs. Commissioner Of Customs, Central Excise CGST, Agra, 2022 (64) G.S.T.L. 354 (Tri. - All.) Mahanadi Coalfields Ltd Vs. Commissioner Of Central Excise Service Tax, BBSR-I, 2022 (57) G.S.T.L. 242 (Tri. - Kolkata) East India Minerals Ltd Vs. Commissioner Of Central Excise, Customs Service Tax, Bhubaneswar-Ii, 2021 (44) G.S.T.L. 90 (Tri. - Kolkata) From the above Judgments, it is settled that a person even if provides Goods Transportation service but if he does not issue Consignment Notes/LR, he cannot be brought under the ambit of GTA. The case of the appellant is on much better footing on the admitted fact that the appellant s client FCPL is in fact the GTA who issued Consignment Note in respect of the Transportation Service provided to M/s Reliance Industries Ltd. Therefore, appellant is not liable to pay Service Tax. The above judgments of this Tribunal have been maintained by the Hon ble Supreme Court reported at 2024 (4) TMI 8 (SC) wherein the Hon ble Supreme Court ordered as under :- ORDER 1. Delay condoned. 2. We are not inclined to interfere with the impugned judgment passed by the Custom Excise and Service Tax Appellate Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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