2013 (9) TMI 33

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....t on the ground that in respect of the consignment of LDPE and LLDPE granules received by them from M/s Reliance Industries, the appellant have availed the GTA service of certain value in respect of which they were liable to pay service tax of Rs. 52,936/-. The jurisdictional Assistant Commissioner vide order-in-original dated 8.2.2010 confirmed the above mentioned demand of service tax under Section 73 of Finance Act, 1994 alongwith interest and besides this, imposed penalty on the appellant. On appeal to Commissioner (Appeals), this order of the original adjudicating authority was upheld vide order-in-appeal dated 21.8.2012 against which this appeal has been filed alongwith stay application. 2. Heard both the sides in respect of stay a....

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....est thereon and penalty may be waived for hearing of the appeal and recovery thereof be stayed till the disposal to the appeal. 4. Shri S.K. Panda, ld. Jt. CDR, opposed the stay application reiterating the finding of the Commissioner (Appeals) in it and pleaded that since the appellant have paid the expenses incurred on freight, as can be seen from the invoices, in terms of the provisions of Notification No. 35/2004-ST dated 3.12.2004 they would be liable to pay service tax and that the service tax demand has been correctly confirmed against them. 5. I have considered the submissions from both the sides and perused the record. Rule 2(1)(d) of the Service Tax Rules, 1994 defines the "person liable to pay service tax" in respect of cert....

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.... of the Notification No. 35/2004-ST dated 3.12.2004 issued under Section 94(2) of Finance Act, 1994 and of Rule 2(1 )( d)(v) of the Service Tax Rules are identical. 6. On perusal of rule 2(1 )( d) (v) of the Service Tax Rules and the notification No.35/2004-ST it is seen that in respect of GTA Service when the consignor or consignee fall in the categories mentioned in the sub-rule and the notification, the person liable to pay service tax is the one who is liable to pay freight either himself or through his agent. In this case there is no dispute that both the consignor as well as consignee are body corporate and, therefore, the person liable to pay service tax on the GTA service received would be the one who is liable to pay the freight....