2025 (9) TMI 1715 - AT - Service Tax

No Consignment Note, No GTA Service: Demand Under Rule 2(1)(d)(v) Quashed for Reverse Charge Liability

CESTAT allowed the appeal, setting aside the service tax demand and penalties on alleged GTA services under reverse charge. It held that, absent any ... Non-payment of service tax by virtue of Rule 2(1)(d)(v) of Service Tax Rules, 1994 - Transportation of Goods by Road service (GTA) - expenditure incurred on account of transportation of goods - reverse charge mechanism - entitlement for abatement under N/N. 32/2004-ST dt.03.12.2004 and N/N. 01/2006 for the period prior to 01.03.2008 - invocation of extended period of limitation. HELD THAT:- It is an admitted fact that the appellants were providing certain transport service directly to the mines owners for whom they were carrying out, inter alia, transportation of ores using their own trucks and were also collecting the freight charges. It is also an admitted fact that department has not produced any consignment note issued by the truck operators, whose trucks were used to transport the ore to the mines owners. In fact, Commissioner, while adjudicating the matter has observed that their being an actual transporter when using their own trucks and were in fact issuing consignment notes also, however, it was not known whether the transporters from whom the appellant had allegedly received GTA service had issued any consignment note, either to the appellant or to the ultimate customer i.e., Mines owners. In the present factual matrix, apart from appellant having not received the taxable service from the provider i.e., transporters/ truck operators inasmuch as there is no consignment note, he is also not even liable to pay freight and it is the mine owners, who were actually liable to pay freight and have either paid the freight or have reimbursed the same to the appellant. In any case, as a defence, appellant had submitted to department that the mine owners have paid the freight and have also paid applicable service tax as recipient. Therefore, even if it is presumed that they had paid the freight and therefore, liable to pay service tax, the appellant’s contention that it was being paid by them on behalf of the customers and were getting the same reimbursed has also much force, especially when department has not adduced any evidence that they were not getting the freight ultimately paid or reimbursed by the mines owners. The department is not contesting that mines owners have not paid any service tax as recipient of ores. Therefore, on both the counts, namely appellant having not received taxable service at threshold and also that they were not liable to pay freight in the given factual matrix, demand of service tax on GTA service against the appellant will not survive. The issue is no longer res integra that when there is no issuance of consignment note, there cannot be a GTA service and therefore, no demand can be made from either consignor or consignee. However, if GTA service has been provided, then the liability to pay service tax by the recipient would be determined in accordance with provisions of Rule 2(1)(d) of Service Tax Rules. At the threshold itself the service of GTA has not been provided by the truck operators to the appellant and therefore, the Rule 2(1)(d)(v) would not be applicable merely because they were initially paying the freight and thereafter, recovering the same from their customer. Further, as on this ground itself, demand is not sustainable, therefore, it is not required to examine the other grounds taken by appellant such as eligibility for abatement under Notification No. 32/2004, as also, the grounds for non-invocation of extended period. Further, as the demand is not sustainable on merit itself, the imposition of penalty will also not sustain. Apepal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1.1 Whether the services of truck operators/transporters, from whom trucks were hired, constituted 'Goods Transport Agency' services in the absence of issuance of consignment notes. 1.2 If the hired truck services were GTA services, whether the appellant was liable to pay service tax under reverse charge in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994, by reason of having incurred expenditure towards freight. 1.3 Consequent upon the above, whether the demand of service tax, interest and penalties was sustainable. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Characterisation of hired truck services as 'Goods Transport Agency' (GTA) services Legal framework 2.1 The Court referred to: (a) Section 65(50b) defining 'goods transport agency' as a person who provides service in relation to transport of goods by road and issues a consignment note, by whatever name called. (b) Section 65(105)(zzp) defining taxable service of transport of goods by road by a GTA. (c) Section 66 as the charging provision for levy of service tax on taxable services. (d) Section 68(1) and 68(2), read with Rule 2(d) of the Service Tax Rules, specifying the person liable to pay service tax. (e) Rule 4B of the Service Tax Rules, requiring issuance of consignment note by a GTA. Interpretation and reasoning 2.2 It was undisputed that the appellant sometimes used its own trucks to transport ore for mine owners and, in such cases, acted as the transporter and issued consignment notes. It was also undisputed that, when its own fleet was insufficient, the appellant hired trucks from independent truck operators for transportation to the same mine owners. 2.3 The department treated the freight expenses paid by the appellant to such hired truck operators as consideration for GTA services received by the appellant and proceeded to levy service tax on that basis. 2.4 The Court noted that no consignment note issued by the hired truck operators had been brought on record. Even the adjudicating authority had observed that it was not known whether any consignment notes were issued by such truck operators, either to the appellant or to the mine owners. 2.5 The Court held that, to qualify as GTA, it is a mandatory requirement that the person providing the transport service should issue a consignment note in terms of Rule 4B. In the absence of such consignment notes, the essential condition of the statutory definition of GTA is not satisfied. 2.6 The Court held that the adjudicating authority had merely presumed that the service received by the appellant was GTA service and then applied Rule 2(1)(d)(v), without first establishing the existence of a taxable service under section 66 read with section 65(105)(zzp) and section 65(50b). 2.7 The Court emphasized that Rules cannot operate as charging provisions; they only regulate the manner of collection once a taxable service, as defined in the Act, exists. Hence, the existence of a taxable GTA service is a threshold requirement before liability under Rule 2(1)(d)(v) can arise. 2.8 The Court relied on prior Tribunal decisions holding that, in the absence of issuance of consignment notes, transport by individual truck operators does not amount to GTA service and that any tax paid in such situations had been treated as wrongly paid. Conclusions on Issue 1 2.9 The hired truck operators did not issue consignment notes; therefore, they did not qualify as 'goods transport agencies' within the meaning of section 65(50b). 2.10 In the absence of GTA service at the threshold, there was no taxable service under section 66 in respect of the hired trucks, and the premise of the demand that the appellant had received GTA services was unsustainable. Issue 2 - Liability of the appellant to pay service tax under Rule 2(1)(d)(v) on alleged GTA services Legal framework 2.11 Rule 2(1)(d)(v) of the Service Tax Rules, 1994, specifies that, for taxable services provided by a goods transport agency, where the consignor or consignee is of specified categories (including a partnership firm), the person who pays or is liable to pay freight for transport of goods by road in a goods carriage is treated as the person liable to pay service tax. 2.12 The Court also referred to the principle, reaffirmed by the Supreme Court, that in taxation there is no implied power to tax, that a tax liability must flow strictly from the statute, and that any ambiguity in a taxing provision must be resolved in favour of the assessee. Interpretation and reasoning 2.13 The department's case was premised on the appellant's status as a partnership firm and on the fact that its books reflected freight expenditure; from this, the department inferred that the appellant had received GTA services and was the person liable to pay freight, thereby attracting Rule 2(1)(d)(v). 2.14 The Court observed that the mine owners were the ultimate recipients of the transportation service. The appellant's role, vis-à-vis the hired vehicles, was to arrange transportation and initially pay freight, which was then reimbursed by the mine owners. It was not shown by the department that the ultimate liability to pay freight rested with the appellant, as opposed to the mine owners. 2.15 The appellant's defence that the mine owners had themselves discharged service tax under reverse charge on the freight was noted. The department did not dispute that the mine owners had paid service tax as recipients in respect of the ore transported. 2.16 The Court held that, even assuming freight was initially paid by the appellant, the evidence and submissions indicated it was paid on behalf of the mine owners and was reimbursed, and the department had brought no contrary evidence. 2.17 The Court reiterated that, before applying Rule 2(1)(d)(v), it must first be shown that: (i) a taxable GTA service exists, and (ii) the person sought to be taxed is the one who pays or is liable to pay the freight in respect of such GTA service. In this case, neither requirement was satisfactorily established. 2.18 The Court also declined to follow a contrary Single Member decision relied on by the Revenue which had upheld liability even where no consignment note was issued, because that approach effectively treated the Rules as charging provisions and imposed tax without a properly established taxable service under the Act. 2.19 Applying the principle that any ambiguity in a charging provision must be resolved in favour of the assessee, the Court held that the appellant could not be roped into tax liability based on presumptions regarding receipt of GTA service or liability to pay freight. Conclusions on Issue 2 2.20 Since no GTA service was established due to absence of consignment notes, and since the appellant was not shown to be the person ultimately liable to pay freight, Rule 2(1)(d)(v) could not be invoked to fasten service tax liability on the appellant. 2.21 The demand of service tax under reverse charge from the appellant, based solely on its incurring freight expenditure and status as a partnership firm, was held to be unsustainable in law. Issue 3 - Sustainability of demand, interest, abatement, limitation and penalties Interpretation and reasoning 2.22 Having held that: (a) the services of hired truck operators did not amount to GTA services; and (b) the appellant was not liable to pay service tax under Rule 2(1)(d)(v), the Court concluded that the basic demand of service tax on the alleged GTA services failed on merits. 2.23 In view of this finding at the threshold, the Court expressly declined to examine other issues raised by the appellant, including: (a) eligibility to abatement under Notification No. 32/2004-ST and related procedural/compliance aspects; and (b) validity of invocation of the extended period of limitation and associated questions of suppression or intent to evade. 2.24 The Court noted that, since the principal demand itself was not sustainable on merits, the consequential imposition of penalties under sections 76 and 78 also could not survive. Conclusions on Issue 3 2.25 The demand of service tax and interest on the alleged GTA services was set aside in entirety, as not sustainable on merits. 2.26 Penalties imposed on the appellant were also set aside as a consequence of the failure of the main demand. 2.27 In light of the above, questions of abatement under Notification No. 32/2004-ST and the propriety of invoking the extended period of limitation were left unanswered, having become academic.