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TMI Blog2024 (9) TMI 1079X X X X Extracts X X X X X X X X Extracts X X X X ..... ort agency is not availing the Cenvat credit as well as the benefit of N/N. 12/2003-S.T. dated 20.06.2003, is completely disagreed - It does not make any difference whether the declaration is given by the transport agency is general or it is given on the consignment note. Moreover, the department could not bring any evidence that such declarations are false or the transport agencies have availed the Cenvat credit and N/N. 12/2003-S.T. In such position the denial of the abatement of 75% to the appellant under N/N. 32/2004-S.T. is only on assumption and presumption. On the face of it the declaration given by the transport agencies evident the fact that the transport agencies have not taken the benefit of both provisions. Therefore, there are no reason why on the basis of general declaration by transport agency benefit of 75% abatement as provided under N/N. 32/2004-S.T. can be denied. This issue has been considered by the Hon ble High Court of Gujarat in the case of COMMR. OF SERVICE TAX, AHMEDABAD VERSUS CADILA PHARMACEUTICALS LTD. [ 2013 (1) TMI 353 - GUJARAT HIGH COURT] where it was held that ' Notification requiring the receiver of the service to pay the tax also does not sti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the records. We find that Notification No. 32/2004-S.T. prescribes the condition that the transport agencies should not avail the benefit of Cenvat credit and the benefit of Notification No. 12/2003-S.T in order to extend the benefit of Notification No.32/2004-S.T. to the service recipient who is liable to pay the service tax on reverse charge mechanism. In the present case there is no dispute that the transport agencies have given the declaration for compliance of the aforesaid condition, a sample copy of the declaration is scanned below : - The similar declaration has been given by all the transport agencies. The adjudicating authority did not accept the declaration only on the ground that such declaration should be made on the body of the consignment note. We completely disagree with the contention of the adjudicating authority as well as the Commissioner (Appeals) that the declaration is only to convey the fact that the transport agency is not availing the Cenvat credit as well as the benefit of Notification No.12/2003-S.T. dated 20.06.2003. It does not make any difference whether the declaration is given by the transport agency is general or it is given on the consignment note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed before this Court. 3. Respondent is engaged in manufacture of P P medicaments and is also engaged in providing taxable service under the category of Technical Inspection Certification Service and in the capacity of service receiver, the respondents was liable to pay the service tax on Goods Transport Service . Tribunal considered the Notification No. 32/2004-S.T., dated 3-12-2004 which provided for abatement of 75% of the gross amount charged from the customer for the purpose of calculating the liability of service tax subject to the condition that the no CENVAT Credit had been availed and benefit of Notification No. 12/2003-S.T., dated 20-6-2003 also had not been availed. 4. Tribunal also held that the requirements prescribed by the Board s Circular was not mandatory and it was working out modality for implementing provisions of law for denial of substantive rights, use of the same cannot be made. Tribunal has dealt with this issue as follows : The respondents are paying the service tax as per the reverse charge mechanism and the relevant notification whereby the service receiver is liable to pay the tax. The question to be decided is that how exactly it should be determine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore in the present Tax Appeal preferred by the Revenue. With no other and further materials having came on record, adjudication and conclusion cannot be different than as was done earlier, this Tax Appeal also requires dismissal and accordingly is disposed of. 4.2 The same issue is dealt by this Tribunal in the case of Lykes Line Ltd (supra) wherein the following order was passed:- The demand of service tax was confirmed in respect of service of Goods Transport Agency against the appellant who discharged the service tax on reverse charge basis. The differential service tax was confirmed by denying the Exemption Notification No. 32/2004-S.T., dated 3-12-2004 by which 75% abatement from the gross value of GTA service has been provided. The main ground for denying the exemption is that the Exemption Notification contained the conditions that the transport agency should not avail Cenvat credit and the benefit of Notification No. 12/2003-S.T., dated 20-6-2003 has not been availed. The Central Board of Excise and Customs vide letter F. No. B-1/6/2005-TRU, dated 27-7-2005, has clarified that for availing the abatement of 75% under Notification No. 32/2004-S.T., a declaration on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that on the similar issue, this Tribunal has passed various judgments which are cited below :- (i) CCE v. Sangam Structural Ltd. - 2015 (39) S.T.R. 1034 (Tri.-Del.); (ii) Advance Diesel Engineering Pvt. Ltd. v. CST - 2008 (10) S.T.R. 201; (iii) Kalpena Industries Ltd. v. CCE - 2013 (32) S.T.R. 644 (Tri.-Ahd.); (iv) Venkateshwara Distributors Pvt. Ltd. v. CCE - 2013 (31) S.T.R. 469 (Tri.-Del.); (v) IOCL v. CCE - 2011 (22) S.T.R. 282 (Tri.-Mum.); (vi) CCE v. Sunhill Ceramics Pvt. Ltd. - 2008 (9) S.T.R. 530 (Tri.-Ahmd.); (vii) CCE v. HT Media - 2011 (23) S.T.R. 451 (Pat.); (viii) Hero Cycles Ltd. v. CCE - 2013-TIOL-901-CESTAT-DEL; (ix) CST v. Cadila Pharmaceuticals Ltd. - 2012 (27) S.T.R. 127 (Guj.); (x) CCE v. Ratan Melting Wire Industries - 2008 (231) E.L.T. 22 (S.C.); (xi) CCE v. Dhiren Chemical Industries - 2002 (139) E.L.T. 3 (S.C.); (xii) Ranadey Micronutrients v. CCE - 1996 (87) E.L.T. 19 (S.C.). 3. Shri Vikram Kaushik, learned Assistant Commissioner (AR) appearing on behalf of the Revenue, reiterates the finding of the impugned order. 4. We have carefully considered the submissions made by both sides. 5. We find that the lower authorities have denied the Exemption Notificati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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