TaxTMI 
TaxTMI 
2018 (6) TMI 387
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....c packaging films at its SEZ unit. The said products are exported by the appellant and are sold by the appellant in Domestic Tariff Area (DTA). The appellant only kept the goods transported to the DTA buyers after charging certain freight amount. The said amount is then paid by the appellant to the transporters. On the basis of intelligence collected and developed by the Officers of SEZ Customs and Preventive Branch of Central Excise Division, Pithampur about the appellant, a show cause notice dated 05.04.2011 was served upon appellant holding it to have been engaged in providing the services of transport of goods by road to their customers at the time of removal of their finished goods in DTA and to have recovered certain amount from their customers on account of transportation of goods by road from factory to their final destination, but they have not discharged any Service Tax liability on the said recovered amount to which they are otherwise liable vide CBEC Circular No.105/08/2008- ST dated 16th September, 2008. The said SCN was adjudicated as above and hence the present appeal. 3. We have heard both the parties at length. 4. The appellant has put forth his argument in four ....
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....not sustain being barred by the time. Appeal is accordingly prayed to be allowed. 5. While rebutting all the grounds of submissions put forth by the appellant it is submitted by Ld. DR that the definition of GTA very much covers the appellant's case. The order under challenge has confirmed the demand only on the basis that the appellant was receiving GTA services from the transporter on which he is liable for Service Tax under reverse charge mechanism. As far as the findings to be beyond the scope of show cause notice, it is submitted that the show cause notice at para 12 thereof has duly mentioned Section 2 (1) (d) sub clause (5) of Service Tax Rules while defining the liability of GTA in view of Section 65 (105) (zzp) of the Finance Act, 1994. No question arises for the order under challenge to be beyond the scope of show cause notice. With respect to appellant's unit being entitled to exemption under SEZ Act, 2005, it is submitted that the applicant's case does not fall under Section 26 (e) of SEZ Act as he was not performing the authorized operations. The said argument has duly been considered by Commissioner (Appeals), who after relying upon Rule 19 of Special Economic Rules,....
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....ice in relation to transport of goods by road and secondly should issue consignment note, by whatever name called. In this present case, admittedly, no consignment note was issued by the goods transporter. The slip issued by the appellant as recipient of service is taken by the adjudicating authority with such activity of transport to bring in tax liability. We find that such attempt is beyond the scope of law. 8. The matter has come up for decisions on earlier occasions by the Tribunal in Nandganj Sihori Sugar Co. Ltd. and others vs. C.C. E., Lucknow -2014 (34) STR 850 (Tri- Del.) it was held that the Goods Transport Agency in terms of its definition under Section 65(50b) provides services in relation to transportation of goods and issues consignment note which should have particulars as prescribed in Explanation to Rule 4B. 9. In cases where admittedly no consignment notes have been issued, the said transporter cannot be called Goods Transport Agency. In Birla Ready-mix - 2013 (30) STR 99 (Tri-Del.) it was held that the provisions of the Act has to prevail and the definition at Section 65(50b) has to be understood independent of Rule 4B of the Service Tax Rules, 1994 to decide ....
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....nd as such, are not exempted even under sub clause (e) of Section 26 of SEZ Act, 2005. 12. At this stage, it is important to know the provision of Section 26 (e) SEZ reads as follows:- SECTION 26. Exemptions, drawbacks and concessions to every Developer and entrepreneur. - (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following exemptions, drawbacks and concessions, namely :- (a) Exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods imported into, or services provided in, a Special Economic Zone or a Unit, to carry on the authorised operations by the Developer or entrepreneur; (b) Exemption from any duty of customs, under the Customs Act, 1962 (52 of 1962) or the Customs Tariff Act, 1975 (51 of 1975) or any other law for the time being in force, on goods exported from, or services provided, from a Special Economic Zone or from a Unit, to any place outside India; (c) Exemption from any duty of excise, under the Central Excise Act, 1944 (1 of 1944) or the Central Excise Tariff Act, 1985 ....
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....emption from payment of Service Tax on taxable service specified in Section 65 of Finance Act, 1994 and rendered to a developer or a unit by any service provider shall be available for authorized operation in Special Economic Zone. As a result, the appellant being a unit in special economic zone shall be entitled for exemption in furtherance of Section 26 (1) (e) read with Section 26 (2) of SEZ Act and read with Rule 31 of SEZ Rules, 2006. Thus, the Commissioner (Appeals) has not only invoked SEZ Act in abeyance of SCN but has also wrongly adjudicated the same. 14. Though in the preset case, the Commissioner while upholding the order of Assistant Commissioner has relied upon certain circular but Section 51 of SEZ Act, 2005 provides the Act to have an overriding effect over the provisions contained in any other Act. Therefore, all the activities relating to Section shall be agreed by the provisions contained in SEZ Act and SEZ Rules. Since this act provides for exemption from service Tax payable under the Finance Act, 1994 on the taxable services provided to a developer or unit to carry on the authorised operations in the said economic zones the unit is entitled for exemption and i....