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TMI Blog2025 (3) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... -2015. The audit party was of the view that in respect of GTA Services, as the appellant is the partnership firm and had paid freight for the transportation of goods by road in goods carriage, they are liable to pay Service Tax in terms of Section 68 (2) of the Finance Act, 1994 read with Rule 2 (1) (d) (i) (B) of the Service Tax Rules, 1994 and Notification No. 30/2012-ST dated 20.06.2012 as amended. In these circumstances Show Cause Notice No. V(a)/Ch.28/155/AC/Audit-II/2015-2016 dated 08.01.2016 was issued proposing to demand the Service Tax amounting to Rs. 1,17,881/- for the period from April, 2011 to March, 2015 under proviso to Section 73(1) of the Finance Act, 1994 to recover interest under Section 75 of the Finance Act, 1994 and to impose penalty under Section 78 (1) of the Finance Act, 1994 and under Section 78 (1) of the Finance Act, 1994 read with Rule 7 of STR 1994 and Section 77 of the Act read with Rule 4 of the STR 1994. The appellant submitted the detailed reply dated 25.09.2016 explaining the legal position. However, the Deputy Commissioner did not accept the submissions made by the appellant and confirmed the demand of Service Tax of Rs. 1,17,881/-, imposed penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Service Tax has already been paid by the service provider. Central Excise Department cannot recover once again the Service Tax from the service receiver under Reverse Charge Mechanism. It is settled legal position that Service Tax cannot be demanded on the same services twice, irrespective of the fact whether the Service Tax has been paid by the service provider or by the service receiver. This issue is no more res integra. As it has been decided by the Hon'ble CESTAT in Omori India Pvt. Ltd. V/s CCE 2017 (11) TMI 759 CESTAT-Ahmedabad and Gurudev Dystuff (India) Pvt. Ltd. V/s CCE 2018 (2) TMI 1399- CESTAT-Ahmedabad. 2.3. The learned Counsel for the appellant also submitted that in this case neutrality of revenue is in existence because if the appellant will pay Service Tax, the CENVAT Credit would be available, in terms of the definition of 'Input Service' as defined in Rule 2 (i) of the CCR, 2004, to the appellant Company. Even if it is assumed that the appellant is required to pay Service Tax then CENVAT Credit is admissible because services are received and utilized in or in relation to manufacture of finished goods whether directly or indirectly. Therefore, if the Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de payment of Service Tax are not proved. Whether service tax has been paid by the service provider or by the service receiver, there cannot be any malafide intention on the part of the service provider or service receiver. Hence, in such case extended period cannot be invoked. 2.8. The learned Counsel for the appellant relied upon Parekh Plast (I) Pvt. Ltd. V. CCE 2012 25 STR 46 (T-Ahmd), V. Mohan Vs. CCE (ST) 2010 (20) STR 686 (T), Aditya Birla Nuvo Ltd. Vs CCE (2011) 22 STR 41 (T-Ahmd) and Padmini Products Vs. CCE 2002-TIOL-289-SC-CX. 2.9. The learned Counsel for the appellant also submitted that the Department is not justified in invoking the extended period of limitation beyond the period of one year under the provisions of Section 73 of the Finance Act, 1994, because in the show cause notice, the breach of any one of the four necessary ingredients such as fraud, collusion or willful misstatement or suppression of facts or contravention of any of the provision of this Act or Rules made thereunder with intent to evade payment of duty, has not been explained properly. The Department has also failed to produce substantial or cogent evidences to prove the alleged breach of anyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax as the appellant being a partnership firm had paid freight for the transportation of goods by road in goods carriage and were therefore, liable to pay Service Tax in terms of Section 68 (2) of Finance Act, 1994 read with Rule 2 (1)(d)(i)(B) of Service Tax Rules, 1994 and Entry No. A (ii) of Notification No. 30/2012-ST dated 20.06.2012 as amended. Therefore, in these circumstances, the service provider cannot exercise any option to avail the exemption or otherwise to collect and pay Service Tax on the said services. The appellant is a manufacturer of excisable goods which he has registered with Central Excise Department. Therefore, when transportation services were consumed by the appellant, they should have paid the Service Tax at the first instance. Ignorance of law is not a shield from non-compliance of legal and statutory obligation. The contention of the appellant has no force that they were not aware about the interpretation of the Notification. The plea of the appellant cannot be accepted that Service Tax has already been paid by the aforesaid GTA, therefore, demand is not sustainable. The demand is not time barred and appellant is liable to discharge their Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... services as may be notified by the Central Government in the Official Gazette, the service tax thereon shall be paid by such person and in such manner as may be prescribed at the rate specified in section [66B] and all the provisions of this Chapter shall apply to such person as if he is the person liable for paying the service tax in relation to such service: [ Provided that the Central Government may notify the service and the extent of service tax which shall be payable by such person and the provisions of this Chapter shall apply to such person to the extent so specified and the remaining part of the service tax shall be paid by the service provider.]" 4.2 As per Entry No. A (ii) of Notification No.30/2012-ST reverse charge is applicable only when taxable service provided or agreed to be provided by a goods transport agency in respect of transportation of goods by road, where the person liable to pay freight is: * Any factory registered under or governed by the Factories Act, 1948 (63 of 1948); * Any society registered under the Societies Registration Act, 1890 (21 of 1860) or under any other law for the time being in force in any part of India; * Any co-operative soc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal was allowed. 4.6 In my view, the facts of the above mentioned case, resemble with the facts of the present case and the principles of law laid down in the above mentioned case are fully applicable in the facts of the present case. 4.7 The learned Counsel also cited Saraswati Engineering Vs. C.C.E. & S.T. -Rajkot- 2023 (12) TMI 1005 - CESTAT Ahmedabad, Kiran Motors Ltd Vs. CCE, Surat- 2012 (7) TMI 135 -CESTAT, Ahmedabad, Sitaram Jaggnath Prasad Sihotia Vs. Commissioner (Appeals), Customs, Central Excise & CGST - (2024) 17 Centax 75 (Tri.-Del), Mahatma Gandhi University of Medical Sciences & Technology Vs. Commr. Of C. Ex. & CGST, Jaipur -2021 (55) G.S.T.L. 26 (Tri. - Del.), Rambal Ltd. Vs. Commissioner of Service Tax-III, Chennai - 2017 (4) G.S.T.L. 333 (Tri. - Chennai). 4.8 I agree with the principles of law laid down in the above mentioned cases by the Tribunals. 4.9 Though I agree with the learned Authorised Representative for the department that the appellant was required to pay the service tax under Reverse Charge Mechanism as provided under Notification No.30/2012-ST dated 20.06.2012 as amended yet in view of the facts of this case, since the service tax has already be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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