TaxTMI 
TaxTMI 
2024 (2) TMI 501
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....3 (2) of Chapter V of the Finance Act, 1994. (ii) I order for charging Interest at the appropriate rate under the provisions of Section 75 of the Finance Act, 1994 on the amount of Service Tax confirmed at (i) above. (iii) I impose a penalty of Rs.200/- (Rupees Two Hundred Only) per day for the period during which failure to pay the tax has continued or at the rate of 2% of such tax per month whichever is higher, starting with first day after the due date till 09.05.2008 upon M/s Dharamraj Singh, Sonebhadra, under section 76 of the Finance Act, 1994. (iv) For their failure to file ST-3 returns up to 10.05.2008, I impose a penalty of Rs.1,000/- (Rupees One Thousand Only) upon M/s Dharamraj Singh, Sonebhadra, under Section 77 of the Finance Act 1994. I impose a further penalty of Rs. 5000/- (Five Thousand Only) under Section 77 (2) of the Finance Act, 1994 on them for their failure to file ST- 3 Returns for the subsequent period. (v) For their failure to obtain service tax registration under 'GTA Service', I impose a penalty of Rs. 5000/- (Five Thousand Only) or @ of Rupees Two Hundred per day for every day during which such failure continues, whichever is higher star....
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....y Road Service without obtaining the registration and payment of due service tax. The issue involved in this case is no longer res integra by following the various judicial pronouncements. Commissioner (Appeals) Allahabad himself has vide Order-in-Appeal No.ST/APPL/ALLD/2015 dated 16.09.2015 allowed the appeals on similar grounds including the present appeal also. Vide Order-in-Appeal No.Appeals-I/Meerut/NST/17/2014-15 dated 12/12/2014 similar order has been passed by the Commissioner (Appeals) Meerut. In view of the above, there is no merit in the impugned order and needs to be set aside. 4.1 We have considered the impugned orders along with the submissions made in appeal and during the course of argument. 4.2 For holding against the appellant impugned order records as follows:- 29. In this backdrop, I find that the issues to be decided by me in the present case are as under: (i) whether the services provided by the party are covered under the purview of service tax and appropriately classifiable under Transportation of Goods by Road Service? (ii) whether the show cause notice has been issued within the period of limitation? (iii) whether the demand of service t....
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....id clause is read as follows:" 'goods' means every kind of movable property other than actionable claims and money, and includes stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be served before sale or under the contract of sale". 33. Section 65 (50a) of the Act defines 'goods carriage' as: "Goods carriage has the meaning assigned to it in clause (14) of section 2 of the Motor Vehicles Act, 1988." As per Section 2 (14) of the Motor Vehicles Act, 1988, 'goods carriage' means- "Any motor vehicle means any mechanically propelled vehicle adopted for use upon road whether the power of propulsion is transmitted thereto from external or internal source and includes a chassis to which a body has not been attached and a trailer, but does not include a vehicle running upon fixed rails or vehicle of a specified type adapted for use only in a factory or any other enclosed premises or a vehicle having less than four wheels fitted with engine capacity of not exceeding twenty five cubic centimeters." 34. Section 65 (105) (zzp) of the Act defines the 'taxable service' as follows: "any service provi....
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....ries Act; (b) any company formed or registered under the Companies Act; (c) any statutory corporation; (d) any registered society, (e) any co-operative society. (f) any dealer of excisable goods registered under the Central Excise Act/Rules; (g) any body corporate established by any law; (h) partnership firm. the person liable for paying service tax will be 'any person' who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage'. Where, the consignor or consignee of goods do not fall in the above categories the goods transport agency shall be liable to pay service tax. 41. It can be seen from the above discussions and the provisions of law, that the services provided by the party to RFC are clearly liable to be classified as 'Transport of Goods by Road Service. The agreement clearly specifies the nature of work assigned to the party, that is, transportation of food grains from various godowns to the individual PDS Shops or other destination by their own truck. Thus, in my view, clearly, the party is providing GTA service. The party has submitted that in absence o....
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....994, Further, the reverse charge mechanism provided under Rule 2 (1) (d) (v) of the Service Tax Rules, 1994 is not applicable since the service recipient (s) are not falling under any of the category of specified person. 42. Further, in a case of similar nature, the levibility of service tax on transportation of food grains for the period prior to 27.2.2010, has been upheld by Hon'ble Punjab & Haryana High Court in the judgement in the case of Harman Transport Co. vs. Food Corporation of India & Others in CWP No. 15974 of 2011 dated 16.04.2012. The High Court held as under: (9) It has also not disputed that 'service tax' was leviable on transport service concerning 'food grains and pulses till 27.2.2010 when those items were also included in the list of exempted items. It is pertinent to mention that on 3.12.2004 a notification in exercise of power conferred by sub-section (1) of Section 93 of the Act was issued by the Government of India exempting payment of tax concerning taxable service provided by a goods transport agency to a customer in relation to transport of fruit, vegetables, eggs or milk by road in a goods carriage from the whole of service tax levia....
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....ansport Agency (GTA) and that transportation per se is not taxable unless same has been provided by a Goods Transport Agency. In a latest judgment of CESTAT, New Delhi in the case of Nadarganj Sihori Sugar Co. Vs Commissioner of Central Excise, Lucknow[ 2014(46) GST/47 taxman.com 92], it was held that mere transportation of goods in a motor vehicle does not amount to Goods Transport Agency (GTA) services-GTA must provide service of transportation of goods under a consignment note, which should have particulars as prescribed in explanation to rule 4B- Consignment note issued by GTA represents its liability to: (a) transport consignment handed over to it to destination, (b) undertake delivery of same to consignee, and (c) temporarily store it till delivery-Merely a bill issued for transportation of goods cannot be treated as consignment note-Therefore, transportation of goods by individual truck owners under fortnightly bills without issue of consignment note, GR's & billties etc. as prescribed in rule 4B would be simple transportation and not service of GTA. This appeal is squarely covered by the above mentioned decision and hence the appellant has no liability at all to pay ....
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....n 2009(13) S.T.R. 554) had the same opinion. 4.4 In case of The Ramco Cements Limited [Final Order No. 40853 / 2023 dated 27.09.2023] Chennai Bench has held as follows:- 11.1 In the case of M/s. K.M.B. Granites Pvt. Ltd. v. Commissioner of C.Ex., Salem [2010 (19) S.T.R. 437 (Tri. - Chennai)] this Bench had an occasion to consider an almost similar issue of liability to Service Tax on services of GTA vis-à-vis Rule 2(1)(d)(v) ibid. After hearing both sides, this Bench has held as under: - "3. Heard both sides. It has been consistently contested by the assessees that services were not being provided to them by the Goods Transport Agency but by individual truck owners/lorry owners. Before the lower appellate authority they have also provided written submissions in support of their above submission. It has been held by the Tribunal in the case of Lakshminarayana Mining Co. v. CST, Bangalore - 2009 (16) S.T.R. 691 (Tri.-Bang.) and in the case of CCE, Guntur v. Kanaka Durga Agro Oil Products Pvt. Ltd. - 2009 (15) S.T.R. 399 (Tri.-Bang.) that transport undertaken by individuals owning and operating lorry and trucks is not subject to service tax as in these cases services has....