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TMI Blog2025 (2) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... evident that such companies, private or limited would get covered under the specified entities/categories stated in the notifications for the respective periods either as a company or as a body corporate. The adjudicating authority has erred in confirming the demand of service tax on GTA services made on the appellant for the reason that coastal energy private limited and fossil logistics private limited had not responded to the subsequent letters of DGCEI sent to them on 05-09-2013. It was incorrect on the part of the adjudicating authority to take up cudgels on behalf of the investigating agency DGCEI, who are amply empowered under statute to collect evidence in case they deem it so necessary, by way of issuance of summons under Section 14 of the Central Excise Act, 1944 of which they would be undoubtedly aware of - As regards the finding of the adjudicating authority on lack of details required as per Rule 4B that ought to figure in a consignment note in the invoices issued by the appellant, in the absence of stating what were the details that have been found deficient or absent, it is unable to appreciate the import of such finding, except that the invoices were lacking certa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n original (OIOs in short) and were heard together and are disposed of by this common order. The adjudicating authority, upon adjudicating a show cause notice (SCN in short)77/2013 dated 30.09.2013 issued for the period April 2008 to March 2012, inter-alia, confirmed a demand of service tax of Rs.2,78,94,926/- as payable under proviso to Section 73(1) of the Finance Act, 1994 read with Section 73(2) of the Act ibid, imposed a penalty of Rs.2,78,94,926/- under Section 78 of the Act ibid, imposed a penalty of Rs.5000/- under Section 77 of the Act and demanded an amount of Rs.14,200/- for the delay in filing ST-3 returns. The Adjudicating Authority with respect to the statement of demand (SOD in short) No.27/2014 dated 19.03.2014 for the period April 2012 to June 2012 and SCN No.225/2014 dated 09.09.2014 for the period July 2012 to March 2013, inter-alia, confirmed demands of Service tax of Rs.4,70,339/- and Rs.54,37,054 respectively as payable under Section 73(1) of the Act ibid, imposed penalty as stipulated in Section 76 of the Act ibid in respect of the demands pertaining to the aforementioned SOD dated 19.03.2014 and SCN dated 09.09.2014 and imposed a penalty of Rs.5000/- under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on Goods transport services made on the appellant is unsustainable. It is submitted that the appellant had provided goods transport services to companies established under the companies act and during the entire period of demand the service tax liability is payable by the service recipients under reverse charge if the consignor or consignee is a company established under the Companies Act. That in spite of the evidences submitted, the demand has been confirmed on grounds which are mere observations/opinions sans any legal basis. It is submitted that the reason stated by the adjudicating authority is that Coastal Energy Ltd and Fossil Logistics Pvt Ltd to whom the appellant had provided GTA services have not replied to DGCEI's letter dated 05.09.2013. The learned counsel submits that they have given the required certificate to DGCEI on 05.09.2013 as has been recorded in para 5.11 of the OIO and yet for the reason that these companies had not responded to the further queries from DGCEI cannot be a reason to confirm the demand on the appellant when the appellant has proved that reverse charge is applicable in this case. It is submitted that the adjudicating authority's observatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; (e) any co-operative society established by or under any law; (f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944(1 of 1944) or the rules made thereunder; or (g) any body corporate established, or a partnership firm registered, by or under any law; 10. Concomitantly, Rule 2(1)(d)(v) of the Service Tax Rules, 1994 stipulated the person who is liable to pay service tax in such cases and provided as under: "Person liable for paying the service tax means, In relation to taxable service provided by a goods transport agency, where the consignor or consignee of goods is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (b) any company established by or under the Companies Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ho receives the service, stipulated in the table therein that in respect of services provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, the percentage of service tax payable by the person providing the service is Nil and the percentage of service tax payable by the person receiving the service is 100%. 13. Thus, for the period under dispute, both, prior to 01.07.2012 and thereafter, if the appellant is able to establish that the entities to whom the appellant provided services of GTA would fall amongst the entities/categories specified and are those who pay or are liable to pay the freight, as per the prevailing provisions noticed supra, then the appellant as a service provider of GTA is under no obligation to pay service tax as the onus to discharge the service tax payment has shifted to the respective consignor or consignee who is liable to pay the freight and are the recipient of the services of GTA provided by the appellant. 14. Now it remains to be seen whether the appellant has evidenced that its clients/customers would fall under the specified entities who would then be liable irrespective of whether they are a cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... losed letters dated 30-11-2012 of Coastal Energy private limited and fossil logistics private limited stating that they have remitted the service tax as recipient of service under GTA during the period 2009-2012. 15. In the light of the above records, we are of the view that the adjudicating authority has erred in confirming the demand of service tax on GTA services made on the appellant for the reason that coastal energy private limited and fossil logistics private limited had not responded to the subsequent letters of DGCEI sent to them on 05-09-2013. It was incorrect on the part of the adjudicating authority to take up cudgels on behalf of the investigating agency DGCEI, who are amply empowered under statute to collect evidence in case they deem it so necessary, by way of issuance of summons under Section 14 of the Central Excise Act, 1944 of which they would be undoubtedly aware of. It was, in any event for DGCEI to take up the matter with the concerned parties and that ought not have weighed against the appellant in the adjudicating authority's appreciation of the matter. Thus, in the light of the categorical assertion by the clients/customers of the appellant that they had d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id customers or had the Department harboured any doubts about their averment in this regard, it was incumbent upon the Department to have independently proceeded against them. When the statute nowhere provides that the onus to discharge the liability to service tax that was cast upon the customers of the appellant would revert onto the appellant in any manner, upon furnishing a copy of their ledger account of transportation bills party wise for the relevant period along with the list detailing such service recipients, a bland statement that they do not tally, shorn of any details as to what are the discrepancies noticed, cannot be reason enough to continue to demand further proof from the appellant when the obligation to pay service tax itself for the GTA services rendered by the appellant was on such service recipients in the first place. It is also a pertinent factor that the law neither mandates the appellant to prove that the service recipient has discharged its liability to pay service tax on the GTA services received, nor does it mandate, as observed supra, that in the event of such service recipient not discharging its liability to pay service tax, such liability would then ..... X X X X Extracts X X X X X X X X Extracts X X X X
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