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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 ..... al. 2. Briefly the facts of the present case are that the appellant is engaged in the business of manufacturing oral and other care products. The appellant was in receipt of GTA services during the period from April 2005 to September 2005 and was discharging Service Tax on the said GTA services under reverse charge mechanism as the recipient of the GTA services. 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 bene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he adjudication proceedings and the order confirming the demand proposed in the show cause notice cannot be passed by going beyond the allegations contained in the show cause notice. In this regard, he relied upon the following two cases: * Suzuki Motorcycle India Private Limited vs. Commissioner of Central Excise, Delhi-III 2023 (11) TMI 370 - CESTAT Chandigarh. * CC 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Reliance in this regard, he placed the following cases: * Liberty Shoes Ltd. vs Commissioner of Central Excise & Service Tax, Delhi and Commissioner of Central Excise & Service Tax, Panchkula 2024 (8) TMI 1332 - CESTAT Chandigarh * Sandoz P. Ltd. vs. Commissioner of Central Excise, Raigad 2014 (33) S.T.R. 424 (Tri. - Mumbai) * Kharkia Alloys Pvt. Ltd. vs. C.C.E., New Delhi-l 2018 (7) TMI 1717 - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption 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 Cenvat credit should not be availed on the inputs or capital goods used for transport service; and (b) the benefit of Notification 12/2003-ST should not be availed in respect of the goods transport agency service. 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ple is applicable to the instant cases also, though the controversy is of different nature. 7. We also note that the lapse, if any, on the part of the appellants is merely procedural. In view of the case laws cited by the learned Counsel for the appellants, substantial benefit of abatement cannot be denied for procedural lapses. Moreover, we find that in an identical case, CESTAT has held in Sandoz (P) Ltd. (supra) that: 5. 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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