2018 (2) TMI 928 - AT - Service Tax

Tribunal grants appeal, rejects Dept circulars, relieves appellant of tax liability

The Tribunal allowed the appeal, setting aside the impugned order and granting consequential benefits to the appellant. The Department's attempt to ... GTA service - N/N. 35/2004-ST, dated 03.12.2004 - Department took the view that notification exemption is not available to appellant as there was no evidence to show that the conditions of the notification were fulfilled - Held that: - Notification No. 32/2004-ST restricted the service tax liability on taxable value in respect of services provided by Goods Transport Agency (GTA) to 25% of the gross amount charged. This notification was rescinded w.e.f. 01.03.2006 by notification No. 2/2006-ST, dated 01.03.2006. However, the exemption allowing for discharge of service tax liability only on 25% of the gross amount charged by the GTA was continued by notification No. 01/2006-ST, dated 01.03.2006, without any conditions on declaration etc. CBEC and in particular the circular No. 137/154/2008-CD.4, dated 21.08.2008, clarified that even for the past cases before the extension of benefit of 75%, abatement to GTA services unconditionally (by notification No. 13/2008, dated 1.3.2008), the benefit of such abatement will be available to the appellant without requirement of any specific endorsement on every consignment note, but merely on general declaration from GTA - In the instant case, from the facts it is seen that the appellants have obtained such undertaking letters from concerned transporters. This being so, the confirmation of demand is in contradiction to the clarifications of CBEC themselves vide circular dated 21.08.2008 - demand do not sustain. Appeal allowed - decided in favor of appellant. Issues:1. Interpretation of Notification No. 32/2004-ST regarding service tax liability on GTA services.2. Validity of exemption benefit under Notification No. 32/2004-ST for the appellant.3. Impact of circulars issued by CBEC on the exemption conditions.4. Compliance with conditions for availing abatement in service tax liability.Analysis:1. The case involved the interpretation of Notification No. 32/2004-ST, which restricted service tax liability on GTA services to 25% of the gross amount charged. The notification was rescinded in 2006 but continued through subsequent notifications, with amendments focusing on the taxable service provider. The issue was whether the appellant, a manufacturer of excisable goods, was liable for service tax on GTA services they availed.2. The Department disputed the appellant's eligibility for exemption under the notification due to lack of evidence fulfilling the conditions. The original authority initially dropped proceedings based on undertakings from transporters. However, a revision order imposed service tax liability, interest, and penalties. The appellant argued substantial compliance with the notification's conditions, citing Tribunal decisions and CBEC circulars supporting their position.3. The appellant relied on CBEC circulars, particularly one from 2008, which clarified that abatement benefits could be extended in past cases based on a general declaration from GTA regarding non-availment of credits. The circular aimed to address difficulties in proving non-availment of CENVAT credit by service providers when consignors or consignees paid the freight. The Tribunal found that the appellant had obtained such declarations, contradicting the Department's position.4. The Tribunal referred to various case laws, including CCA Allahabad Vs. Sangam Structurals Ltd., emphasizing that CBEC circulars cannot add unintended conditions to exemption notifications. The Tribunal held that the Department could not restrict or expand the scope of an exemption notification through subsequent circulars. Relying on legal precedents, the Tribunal allowed the appeal, setting aside the impugned order and granting consequential benefits to the appellant.