TaxTMI 
TaxTMI 
2020 (1) TMI 590
X X X X Extracts X X X X
X X X X Extracts X X X X
....red partnership firm and paid freight, as per Notification No. 25/04-ST dated 03.12.2004 read with Rule 291)(d)(v) of the Service Tax Rules, 1994, they were liable to pay the Service Tax. After conducting a detailed investigation and after recording the appellant's statement and after obtaining particular information and figures from the provider of service, department issued SCN dated 03.08.2007 demanding Service Tax of Rs. 37,86,847/- with interest and penalties for the period from 01.01.2005 to 19.02.2005. The appellants contended that they were partnership firm engaged in mining under Mines Act, 1952 and not under Factories Act; Iron ore attracted NIL rate of duty and so no CENVAT credit was availed by them; that there was no mens rea or mental element in intention to evade tax; that the same issue was raked up in the case of Doddannavar Brothers, EOU Division and so all the facts were in the knowledge of the Department. The Original Authority, after following the due process, has confirmed the demand with interest and penalties. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A) who, except dropping the penalty under Section 76, confirmed the d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gra and has been settled in favour of the assessee in the following decisions: • Lakshminarayana Mining Co Vs CCE, 2019 (27) GSTL 745 (Tri. Bang.) • CCE Vs Kanaka Durga Agro Oil Products Pvt. Ltd., 2009 (15) STR 399 (Tri. Bang.) • Bellary Iron & Ores Ltd. Vs CCE, 2010 (18) STR 406 (Tri. Bang.) • Ultra Tech Cement Ltd. Vs CCE, 2018 (10) GSTL 80 (Tri. Mum.) • Shanti Fortune (I) Pvt. Ltd. Vs CCE, 2010 (19) STR 883 (Tri. Che.) • Caps & Prints (P) Ltd. Vs CST, 2013 (30) STR 426 (Tri. Kol.) • Shreenath Mhaskoba Sakhar Karkhana Ltd. Vs CCE, 2017 (3) GSTL 169 (Tri. Mum.0 • Bhima Sahakari Sakhar Karkhana Ltd. Vs CCE, 2016 (41) STR 438 (Tri. Mum.) • CCE Vs Jaikumar Fulchand Ajmera, 2017 (4) STR 52 (Tri. Mum.) • South Eastern Coalfields Ltd. Vs CCE, 2017 (47) STR 93 (Tri. Del.) • South Eastern Coalfields Ltd. Vs CCE, 2018 (10) GSTL 50 (Tri. Del.) • Western Coal Fields Ltd. Vs CCE, 2017 (4) GSTL 260 (Tri. Del.) 4.1. Learned Counsel further submitted that the entire demand in the present case is time barred as the demand pertains to perio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsignment note was issued. Here it is pertinent to provide definition of 'Goods Transport Agency' as provided in Section 65(50b) and of the 'taxable service' as provided in Section 65(105)(zzp): ........ "(50b) "goods transport agency" means any [person who] provides service in relation to transport of goods by road and issues consignment note, by whatever name called;]..... (105)(zzp) "taxable service means any [service provided or to be provided], [to any person], by a goods transport agency, in relation to transport of goods by road in a goods carriage; 6.1. If we see the definition of "Goods Transport Agency", it clearly shows that the services must be provided by a person in relation to transport of goods by road and issues consignment note, "by whatever name called" whereas in the present case, we find that no consignment note was issued. Further, we find that this Tribunal in identical facts has held in the case of Lakshminarayana Mining Co cited supra wherein the Tribunal in Para 7 to 12 has held as under: "7. Having heard the rival submissions, we take note that this issue has come up before the Tribunal time and again. In a catena of decision....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h of those services which are in relation to transport of goods by road which are taxable and not the actual transport of goods by roads itself.' and in section 65(50b) of Finance Act, 1994 goods transport agency envisages rendering of service by a person in relation to transport of goods by road and issue of a consignment note by whatever name called. 9. From the above, it is clear that the tax liability will arise only upon the goods transport agency i.e., one who undertakes responsibility, in full legal sense, for the cargo despatched by it and an individual truck operator who does not accept such responsibility, is merely performing the activity of transport of goods which is not the subject of the tax. It is, of course, necessary to point out, from the history of the tax on this service, that the blanket intent to tax the operators led to widespread agitation and, conscious of the problems of implementation, the Central Government, upon reintroduction of the levy, restricted it to agencies. 10. It is clear from the records that the invoices that have been relied upon by the adjudicating authority includes addition of service tax component as well as ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... consignment notes. Under Rule 4B of the Service Tax Rules, 1994, "any Goods Transport Agency which provide service in relation to transport of goods by road in a goods carriage shall issue a consignment note to the customer. In term of Explanation to Rule 4B, 'Consignment Note' means - a document issued by Goods Transport Agency against the receipt of goods for the purpose of its transport by road in a goods carriage, which is serially numbered and contains the name of consignor and consignee, registration number of the goods carriage in which goods are transported, details of goods transported, details of the place of origin and destination, person liable for paying Service Tax whether consignor, consignee or Goods Transport Agency. Thus mere transportation of the goods in a Motor Vehicle is not the service provided by a Goods Transport Agency. A Goods Transport Agency in terms of its definition under Section 65(50b) provides service in relation to transportation of goods under a consignment note which should have the particulars as prescribed in explanation to Rule 4B. In the present case admittedly no consignment notes have been issued. The fortnightly bills cannot be treated a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the tax liability under 'Goods Transport Agency' service cannot be sustained. It is pertinent to refer Para 7, 8 & 9 of the judgment which is reproduced herein below: "7. The matter has come up for decisions on earlier occasions by the Tribunal in Nandganj Sihori Sugar Co. Ltd. and Others v. C.C.E, Lucknow - 2014 (34) S.T.R. 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. 8. 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) S.T.R. 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 whether the person concerned is a goods transport agency. 9. In Northern Coalfields Limited v. C.C.E., Bhopal vide Final Order No. 53313/2015, dated 29-10-2015, an identical situation was examined by the Tribunal....