2018 (6) TMI 1010

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....category of Goods Transport Agency as defined under section 65 (105)  (zzp) of Finance Act, 1994 and not covered under the categories mentioned in rule 2(1)(d)(v) of the Service Tax Rules, 1994 therefore liable to pay service tax of Rs. 14,74,847/- along with interest and penalty as proposed in the Show Cause Notice. The demand was confirmed ex-parte by the Adjudicating Authority along with interest and penalty. The Order of adjudication was upheld by the Commissioner (Appeals) vide OIA dt. 02.07.2014. Hence the present appeal. 2. Shri S.B. Awate, Consultant appearing on behalf of the appellant submits that their activity were not only restricted to mere transportation of the goods but will also include loading and unloading of the fo....

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....d upon the Tribunal order in case of COMMR. OF C. EX. & S.T., AURANGABAD Vs. JAIKUMAR FULCHAND AJMERA 2017 (48) S.T.R. 52 (Tri. - Mumbai) wherein it was held that the demand is not sustainable. The said order is reproduced as under : "M/s. Fulchand Ajmera had been retained by the District Supply Office, Osmanabad to move food grains and other goods in the operation of the public distribution system and received a sum of Rs. 11,97,78,894 between January, 2005 and August, 2009 on which a tax of Rs. 34,82,611 was confirmed as due from them as provider of "goods transport agency" service by the Joint Commissioner of Central Excise, Aurangabad. The first appellate authority, Commissioner of Central Excise (Appeals), Aurangabad, vide Order-in-Ap....

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....n of "goods transport agency" in Section 65(50b) of Finance Act, 1994 and find that an essential characteristic of provider of the service is the issuance of a consignment note. Revenue has resorted to a circular logic by claiming that Rule 4B of Service Tax Rules, 2004 requires the goods transport agency to issue a consignment note. This, according to us, is a specious line of reasoning as the provider of "goods transport agency" service being determined by issuance of consignment note under the statute, it is not within the ambit of a subordinate legislation to create the class of taxable persons by imposing a condition that would, perforce, bring such persons within the tax net. The intent and purpose of Rule 4B has been misinterpreted b....