TaxTMI 
TaxTMI 
2021 (5) TMI 440
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.... unit, effects delivery of the kraft papers manufactured to its distributors/dealers by engagement of local transporters who lift the said goods from the factory of the appellant on the basis of challans issued by the appellant, duly acknowledged by the said transporters. (ii) The transporters, after delivery of the goods, raised bills/invoices periodically, covering a specified period(s). The said bills/invoices contained, amongst others, the date of loading, truck numbers, challan numbers issued by the appellant, date of unloading, demurrage if any and charges for delivery at extra points, etc. Along with the bills the transporters also submitted acknowledgement copies of the challans as proof of delivery. None of them issued any consignment note. (iii) Pursuant to an audit by CERA, audit objections were raised on 01.03.2012, demanding payment of service tax on transport charges (outward freight) for the period 2009-10 to 2011-12 from the appellant on reverse charge basis on the ground that there was providing of GTA services by the transporters. Reply dated 09.05.2012 was filed by the appellant denying any providing of GTA services and hence liability to make payment of serv....
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....undisputed facts are on record: (a) The concerned transporters operate either individually or through a sole proprietorship firm. They raised periodical bills or invoices, along with copies of challans issued by the appellant with acknowledgements of the recipient of the said goods, as proof of delivery of the goods; (b) None of the bills/invoices raised by the transporters contained in them details, such as name of consignor and consignee, place of origin and destination, person liable to pay service tax and in many cases registration number or details of the carrier vehicles and also not serially numbered. (c) No consignment note was issued by any of the transporters; (d) No amount towards service tax liability is also referred to in any of the said invoices or bills. (e) None of the transporters own any regular fleet of vehicles. They lift the goods from the appellant's factory according to the availability of vehicular space in a particular vehicle engaged by them at the given point of time. (iii) In such circumstances it cannot be said that the transporters had raised any document in the name of the appellant for the purposes of transportation of the said goods whi....
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....d to any person, by a goods transport agency, in relation to transport of goods by road in a goods carriage'. (Section 65(105)(zzp) of Finance Act, 1994 as amended). (iii) As per 'Explanation' to Rule 4B of the Service Tax Rules, 1994, 'Consignment Note is a document, issued by a goods transport agency against the receipt of goods for the purpose of transport of goods by road in a goods carriage, which is serially numbered, and contains the name of the consignor and consignee, registration number of the goods carriage in which the goods are transported, details of the goods transported, details of the place of origin and destination, person liable for paying service tax whether consignor, consignee or the goods transport agency'. (iv) As per Rule 2(1)(d)(v)(a) of the Service Tax Rules, 1994, 'person liable for paying service tax', in respect of the taxable services notified under sub-section (2) of Section 68 of the Finance Act, 1994 means 'any factory registered under or governed by the Factories Act, 1948'." 6.1 In the instant case, from the records it is seen that except for bills or invoices and acknowledgments of receipt of the goods by the customers by endorsing the chal....
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....ly bills raised by them on the appellant, the transit pass in 'Form-G', issued by the mining authority for the purpose of payment of mining royalty, and transportation of iron ore from the mines site. The raising contractors have not issued any other document in the name of the appellant, for the purpose of transportation of iron ore, which can be termed as a consignment note, as stipulated under Rule 4B of the Service Tax Rules, 1994, as amended. As per the legal principles decided by different Benches of Tribunal and relied upon by the appellant, the activities of transportation of iron ore in the present case, do not fall under the GTA service in terms of Section 65(105)(zzp) of the Finance Act, 1994, nor the raising contractors fall under the definition of 'GTA' as defined under Section 65(50b) of the said Finance Act." 6.4.2 In Commr. of Cus., C.Ex. & Service Tax Vs. JWC Logistics Pvt. Ltd. (supra), also a case involving similar facts, a coordinate division bench of the Tribunal has held as under: "5. It is not in dispute that the respondent had availed services of M/s V.A. Enterprises and others, but, admittedly, did not discharge service tax liability on the consideration....
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....ote. 9. Revenue relies upon the invoices or monthly bills raised by M/s. Enterprises. An invoice, notwithstanding adequacy of details thereon is no substitute for a consignment note. An invoice creates liability of debt on the part of the recipient of the service. A consignment note, on the other hand, carries with it a certain legal burden, the issuing of a consignment note is a contractual undertaking made to the entity that handed over the goods to the agency of responsibility for safe delivery at the stipulated destination. A consignment note also creates binding responsibility for each consignment. In the absence of any evidence of such responsibility having devolved on M/s. V.A. Enterprises and the issue of monthly bills does not, ipso facto, creates such liability and the impugned order is not at fault for having held that tax liability does not arise." 6.4.3 The same view has also been taken by two other coordinate Division Benches of the Tribunal in the cases of Lakshminarayana Mining Company Vs. Commr. of Central Tax (supra) and Ultra Tech Cement Ltd. Vs. Commissioner of C.Ex.(supra). 6.5 The decisions of the Tribunal and the Hon'ble Madras High Court relied upon by t....