2023 (5) TMI 1336 - AT - Service Tax

Appellant entitled to abatement under Notification 32/2004 for road transport services after producing required certificates

CESTAT Kolkata allowed the appeal and set aside the Commissioner's revision order dated 28.10.2009. The appellant was entitled to abatement under ... Payment of freight for transport of goods by road on the entire value of taxable Service - Entitlement to Abatement under Notification 32/2004-Service Tax - refund claim - Challenge of self-assessment - Unjust enrichment - Compliance with conditions for availing abatement under Notification 35/2004 - HELD THAT:- We observe that the conditions have been imposed on the GTA to give such a declaration on consignment notes. Thus making a declaration on consignment is a burden imposed on GTA and not on service receiver who is made liable to pay Service Tax. Only that they have to be a little vigilant in this regard that GTA’s make such a declaration to make them eligible for the abatement. We observe that the Transporters have issued a certificate to the effect that they have not availed credit on capital goods or inputs, which was accepted by the original adjudicating authority, but rejected by the Revision Authority. The Appellant has produced certificates received from the transporters to the effect that no credit on capital goods or inputs was availed by them as required in terms of notification 35/2004-Service Tax dated 03.12.2004. The evidences submitted by the Appellant clearly indicate that they have fulfilled the conditions stipulated in the notification and accordingly, we hold that the lower authority has rightly sanctioned the refund claim. During the course of hearing the Ld A.R raised some issue regarding not challenging the self-assessment by the Appellant, non examination of the unjust enrichment angle by the original authority etc. We observe that they were not the issues raised in the Revision order by the Commissioner. Accordingly, we find no infirmity in the order passed by the original authority sanctioning the refund. Thus, we set aside the impugned Revision order dated 28.10.2009 passed by the Commissioner and allow the appeal filed by the Appellant. Issues Involved:The judgment involves the issue of entitlement to abatement under Notification 32/2004-Service Tax, eligibility for refund claim, challenge of self-assessment, examination of unjust enrichment, and compliance with conditions for availing abatement under Notification 35/2004-Service Tax.Entitlement to Abatement under Notification 32/2004-Service Tax:The Appellant, a recipient of Goods Transport Services, contended that they were entitled to a 75% abatement in the taxable value as the transporters did not avail credit on inputs and capital goods, as required by Notification 35/2004 ST. The original adjudicating authority sanctioned a refund claim, but the Revision Order by the Commissioner rejected it, citing procedural grounds.Eligibility for Refund Claim:The Appellant claimed that they were eligible for the abatement under Notification 32/2004-ST but paid service tax without availing it due to oversight. They argued that the refund was rightly sanctioned by the original authority after verifying the excess payment of service tax. The Commissioner, however, did not consider the certificates provided by the Appellant from transporters, leading to the rejection of the refund claim.Challenge of Self-Assessment and Unjust Enrichment Examination:The Appellant's Authorized Representative cited legal precedents and argued that the refund cannot be claimed without challenging the self-assessment. The issue of unjust enrichment and limitation was also raised, emphasizing the need for examination by the original authority. However, these issues were not raised in the Revision Order by the Commissioner.Compliance with Conditions for Availing Abatement under Notification 35/2004-Service Tax:The Commissioner raised objections regarding the eligibility for availing exemption based on the certificates provided by Goods Transport Agency. The conditions imposed on the GTA to provide specific declarations on consignment notes were discussed, emphasizing the burden on the GTA to make such declarations for the service receiver to be eligible for abatement.Conclusion:After considering the arguments and examining the records, the Appellate Tribunal set aside the Revision Order passed by the Commissioner and allowed the appeal filed by the Appellant, holding that the lower authority rightly sanctioned the refund claim based on the fulfillment of conditions stipulated in the notification. The issues of challenging self-assessment and unjust enrichment, not raised in the Revision Order, were not found to be grounds for infirmity in the original authority's decision.