TaxTMI 
TaxTMI 
2023 (7) TMI 883
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....consistency, also provide drivers/ supervisors on 24 hours/ day basis and arrange diesel for the vehicles. Appellant had reportedly charged service charges on fixed lump sum basis per month per vehicle and variable cost at agreed rate for their own vehicles which appeared to be the consideration received against "supply of tangible goods for use" service which was taxable. Appellant had not issued any consignment note/LR in regards to such services for transportation of any of the consignments. Appellant was not paying service tax on the aforesaid service activity. Therefore, an inquiry against Appellant was initiated by the DGGI officers; various summons and letters were issued to appellant to tender documents/details thereon and to record oral statements. In reply, Appellant submitted the Audited Balance Sheet/Profit & Loss Account, Copies of Work Orders with principal transporter M/s FCPL's copies of sample invoices raised in respect of the impugned services, Sale ledger accounts etc. M/s FCPL Mumbai also submitted the copies of the contract along with renewal letter and agreement entered into by them with Appellant. The scrutiny of agreement and documents reveal that Appellant ....
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....hese LRs are consignments note only, which customarily referred as Lorry receipts or LR in the business of transport of goods by road. These LRs issued by M/s Fine Tech Corporation are described as "Consignment Note" only and contain all the prescribed information like serial number, date of issue, details of consignor and consignee, vehicle number, details of goods, place of origin and destination, and most importantly the person liable for making payment of Service tax. Therefore, it is abundantly clear that M/s Fine Tech Corporation was a Goods Transport Agency. The Appellant having provided the means of transportation of goods, on hire to a Goods Transport Agency was very well entitled to exemption as per Entry No. 22(b) of the Notification No. 25/2012-ST dated 20.06.2012 and therefore, the demand is liable to be quashed. 4.1 Without prejudice, he further submits that recovering Service tax from the Appellant would amount to double taxation, which was never the intention of the lawmakers. The very purpose behind the Exemption vide Entry 22(b) was to avoid double taxation, as the services by way of providing any means of transportation by road was exempted only and only when pr....
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....inding of the impugned order. 6. We have carefully considered the submissions made by both sides and perused the case records. 6.1 We find that the contract agreement with M/s FCPL was examined by the department and on the basis of that contract, it was alleged that appellant is engaged in providing taxable declared service of "transfer of goods by way of hiring, leasing, licensing or in any such manner without transfer of right to use such goods" as defined under Section 66(E)(f) of the Finance Act, 1994 under the category of supply of tangible goods for use service. The show cause notice has been adjudicated by the adjudicating authority and the adjudicating authority has recorded his finding as under: "28. On perusing the above terms and conditions, it is forthcoming that M/s CLL owned or possessed fleet of trucks, and were to supply the trucks as per Annexure -1 along with drivers and supervision to FCPL and carrying out, on behalf of M/s FCPL services of transportation of goods by road. M/s FCPL was is in the business of transportation of goods by road, including Food, FMCG, F&V, clothing and various general merchandise to the network of its client business locations. M/s ....
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....llant on the ground that Appellant has not provided the services of transportation of goods by road to M/s FCPL, but they have provided services of supply of vehicles to M/s FCPL. However this finding of Ld. Commissioner is factually and legally not correct as evident from the scope of service mentioned in the agreement entered by the parties. The scope of service mentioned in agreement is reproduced as below: I. Scope of Services: 1. To provide transportation services using ambient and refrigerated vehicles as per Annexure -1 at FCPL, DC/CPC locations for secondary (DC to stores)/ Local primary (Inter DC, CC to CPC)/ Regional transportation services. 2. For providing transportation services by you, FCPL shall from time to time instruct the truck operator to increase/ decrease the number of vehicles as per requirement of the DC. From the above Scope of services it is clear that the main essence of contract is to provide the transportation services to M/s FCPL. 6.3 Further we also noticed that Section 66D of the Finance Act, 1994 gives list of services which were grouped under the "Negative List", the said negative list covers the items/services which are exempted from the l....
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....in the 'Negative List' Entry under Section 66D (p)(i) of the Finance Act, 1994. 6.6 To substantiate the above a sample copy of 'Consignment Note' issued by Fine Tech Corporation Pvt. Ltd. is scanned below: On the basis of above 'Consignment Note', the appellant issued their Bills. Sample copy of their bill is scanned below: From the above 'Consignment Note' issued by FCPL and the detail of the same appearing in Appellant's above bill, it can be seen that for the truck provided by M/S chartered logistic the GTA service was provided by Fine Tech Corporation Pvt. Ltd. who have issued the consignment note therefore the services provided by the appellant to M/S FCPL does not fall under the category of GTA service even though the appellant have provided service of transportation of goods for the reason that the service of transportation provided by the appellant is to the GTA and for the said service consignment note was issued by FCPL to its client M/S Reliance Industries Ltd. therefore, for the entire activity that is transportation of goods by the appellant to FCPL for which the consignment note was issued by FCPL the GTA service provider is FCPL to its client M/S Reliance industri....
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....i.e M/s FCPL is not a Goods Transport Agency. However we have already discussed in above paragraph that in the present matter FCPL has issued consignment notes/ LRs for transportation of goods, hence M/s FCPL is clearly covered under the definition of Goods Transport Agency Service and if at all there is any Service Tax liability it is on the service recipient of FCPL i.e. M/s Reliance Industries Ltd. In view of this we also do not see any reason for denying the benefit of the exemption under this entry to the appellant. 6.9 Without prejudice to our above findings we further note that the entire show cause notice is based on the contract, which is for providing transportation services three dedicated vehicles, which contributes to only a small part of the total business with FCPL and the major and significant business with FCPL is covered by another contract which is undisputedly for providing destination-to-destination transportation services. The learned Commissioner erred while ignoring such a critical point while issuing the show cause notice therefore the show cause notice suffers from apparent error therefore, the proceedings of the show cause notice to that extent is vitiat....
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....kes no difference, does not make a declaration, there would be no wilful mis-declaration or wilful suppression. If the department felt that the party was not entitled to the benefit of the notification it was for the department to immediately take up the contention that the benefit of the notification was lost. (b) In the case of Continental Foundation Joint Venture Vs. Commissioner of Central Excise Chandigarh-I reported in 2007 (216) ELT 177 (SC) the Apex Court held as under: "10. The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppression of fact. An incorrect statement ca....