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TMI Blog2024 (9) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order and the Order-in-Original passed by the authorities below have gone beyond the allegations in the show cause notice because in the show cause notice there is no allegation regarding the non-fulfillment of conditions for claiming benefit of Exemption Notification. Any evidence beyond the show cause notice is not sustainable as held in the case of Suzuki Motorcycle India Private Limited [ 2023 (11) TMI 370 - CESTAT CHANDIGARH ], therefore, on this account, the demand is liable to be set aside. It is found that the benefit of exemption notification has been denied on the ground that the conditions are not satisfied in terms of exemption notification for claiming the abatement the following conditions are satisfying, namely, (a) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . A show cause notice dated 19.10.2006 proposing the demand of service tax along with interest and penalty was issued on the basis that the appellant is a GTA and not consignee or consignor of the goods thus the appellant has incorrectly availed the benefit of abatement on tax payable on the value of GTA services in terms of Notification No. 32/2004-ST dated 3.12.2004 as no such benefits are available to the persons other than GTA under the said abatement Notification, and short paid Service tax amounting to Rs 89,175/-. After following the due process, the adjudicating authority vide Order-in-Original dated 19.05.2010; agreed that there was no restriction on a consigner/consignee to avail the benefit of the Abatement Notification. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Ballarpur Industries Ltd.- 2007 (215) ELT 489 (SC). 5. He further submits that the appellant has correctly availed the benefit of abatement of 75% from the payment of Service tax on receipt of GTA services in terms of Notification No. 32/2004 dated 03.12.2004. He further submits that the only finding in the impugned order for denying the benefit to the appellant is on the basis that the conditions of the Exemption Notification are not satisfied. He further submits that the two conditions cannot be practically complied with by the appellant as they are not part of the record of the Appellant. Ascertainment of the fulfillment of said conditions are to be checked at the ends of the GTA service provider. He further submits that department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 - CESTAT New Delhi., 6. As regards the demand of interest and penalty, the Ld. Counsel for the appellant further submits that when demand of tax itself not sustainable the question of interest doe not arise. 7. On the other hand, Ld. AR has filed the written submissions which are taken on record and he reiterated the findings of the impugned order and submit that the appellant has failed to comply with the condition of the Notification. He also submits that the Notification should be interpreted strictly and the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. In support of his submissions, Ld. AR relied upon the following decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We also find that the department has failed to prove that the conditions mentioned in the notification are not satisfied in the present case. The department has not brought any evidence to prove that the GTA has taken CENVAT credit or availed of the benefit of the Notification No. 12/2003-ST dated 20.6.2003 and therefore, the benefit cannot be denied on the basis of circular dated 27.07.2005 prescribing the procedure for declaration. It is a settled law that a circular cannot be said to be mandatory and cannot go beyond the statutory requirements as held in the cases cited (Supra). 10. This Tribunal, in the case of Liberty shoes Ltd. has examined this issue and held in para 6 7 as under: 6. Heard both sides and perused the records of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We observe that in this case appellant availed goods transport agency service and paid the Service Tax as per the Service Tax Rules, 1994 as service recipient. Although there is no endorsement on the consignment that the transporter has not availed Cenvat credit but it is implied 47 that when the transporter has not paid any Service Tax, question of availment of input/input Service Tax credit does not arise. In view of these observations, we do not find any merit in the impugned order. Therefore, impugned order is set aside and the appeal is allowed with consequential relief, if any. 11. We also find that the decisions of the Madras High Court relied upon by the Ld. AR is distinguishable on facts as in that case the show cause notice was i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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