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TMI Blog2024 (12) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the provisions of Income tax Act would not be relevant to determine taxability of services under the Finance Act, 1994, accordingly, demand of service tax on this count cannot be sustained. Demand of service tax under the category of Supply of Tangible Goods services - Demand of tax under the category of Goods Transport Agency (GTA) services - HELD THAT:- Upon perusal of relevant facts from the available records, it is found that demand of tax under the category of supply of tangible goods service and GTA service pertains to transportation of goods carried out by the appellant by his own trucks and that appellant has neither collected any tax nor issued consignment notes; be so, the said activity is not taxable either prior to negat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cern of Shri Ashok Kumar Balvantrai Bavalia. ( appellant herein after) has filed the present appeal against Order-In-Appeal No. CCESA-SRT(APPEALS)/PS-512/2017-18 dated 28-03-2018 passed by the Commissioner (Appeals) of CGST, Surat. 1.1 The facts relevant to the matter are that appellant during 2009-10 to 2013-2014 (upto December 2013) was mainly engaged in providing construction services towards various public infrastructure of R B department of state government. It is available on record that appellant neither collected nor paid the service tax under the belief that such services provided to various government department was exempt from service tax. It is also available on record that during inquiry by the officers of department, appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Period from 2009-10 to 2013-14; that appellant provided taxable services falling under the service category Commercial or Industrial construction services, Supply of tangible goods services, Manpower Recruitment and Supply services and GTA services which are taxable services as per Section 65(105) of the Finance Act, 1994 but they did not apply for inclusion of these services in his service tax registration; that the appellant has violated the provision of Section 66 of Finance Act,1994, Section 68 read with Rule 6 of the Service Tax Rules, 1994, and Section 70 of the Act read with Rule 7 of Service Tax Rules, 1994 as the appellant failed to pay the service tax amounting to Rs. 34,39,310/-. On that basis, demand of Service tax was confir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by the appellant by his own trucks, which did not fall within the purview of GTA and is not taxable service, that as regard, manpower recruitment and supply services and machinery rental, there is no inquiry made at the end of recipient to ascertain the nature of service, and further, in any event, the same was exempt, value being below threshold limit of ten lacs in terms of notification no. 8/2003. It is further submitted that appellant has maintained complete records of his activity and demand of service tax is raised from income shown in balance sheet, hence question of wilful suppression of facts with intention to evade tax does not arise, consequently demand of tax is barred by limitation too. 3. Shri P Ganesan, Learned Superinte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory of Supply of Tangible Goods services , the same is upheld considering taxable value of Rs. 2,94,81,449/- for the period 2009-10 to 2012-13. It is the case of department that appellant owned nine trucks (dumpers) and that the same were used on rent basis to various individuals and that reimbursement received for supplying dumpers which is shown in ledgers/balance sheet as truck bhada income is a taxable services falling under the category of supply of tangible goods as defined under section 65(105) (zzzzj) of the Finance Act, 1994. It is observed that by reply dated 14-10-2014 to summons dated 7-10-2014 the appellant denied having provided supply of tangible good services during the disputed period, in support appellant submitted voucher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes; be so, the said activity is not taxable either prior to negative list regime or even after the same is specifically included under 66D (p) of the Finance Act, 1994. 4.4 In our view, entire approach in the show cause notice of determining taxability is incorrect; taxability could not have been determined based on inferences from how the income is treated under other statues or nomenclature of income shown in the balance sheet. There is no reliable material based on which it can be said that appellant has provided taxable services as claimed by the revenue. In that view, burden of proving provision of taxable service stands not discharged by revenue. Consequently, demand of tax on construction service, supply of tangible goods and GTA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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