2016 (11) TMI 192

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....m the gross value of GTA service has been provided.  The main ground for denying the exemption is that the Exemption Notification contained the conditions that the transport agency should not avail cenvat credit and the benefit of Notification No.12/2003-ST dated 20.6.2003 has not been availed.  The Central Board of Excise and Customs vide letter F.No. B-1/6/2005-TRU dated 27.7.2005, has clarified that for availing the abatement of 75% under Notification No.32/2004-ST, a declaration on the consignment note to be given by the goods transport agency to the effect that neither the credit on inputs or capital goods used for provision of service has been taken, nor the benefit of Notification No.12/2003-ST has been taken by them. ....

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....ed from the concerned transport agency on their letter.  The same was discarded by the lower authority on the ground that declaration should be obtained on the consignment note.  He submits that once a transporter gives a general declaration that no cenvat credit was availed, in that case there is no need to give declaration of individual consignment.  As regards the Notification 12/2003-ST in respect of GTA service, no goods is supplied along with the service.  Therefore, the question of availment of Notification 12/2003 or otherwise does not arise.  Moreover, the department could not adduce any evidence that the appellant has contravened any of these two conditions of the Notification.  He submits that on the....

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....ot be practically complied with by the recipient of service.  Secondly, the department could not prove that the goods transport agency has availed the benefit of cenvat credit and Notification 12/2003-ST.  The Notification does not provide any condition that any declaration as sought by the department is required to be obtained from the goods transport agency and produce to the department in order to avail the Exemption Notification.  Therefore, the Board circular which prescribes the procedure for obtaining the declaration, is not flowing from the Notification.  In our view, the Board cannot prescribe any condition or procedure for availing any Exemption Notification.  If at all any procedure is required, it should....