2023 (5) TMI 1336

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....paid freight for transport of goods by road on the entire value of taxable Service without availing 75% abatement entitled to them in terms of Notification number 32/2004-Service Tax dated 03.12.2004. The Appellant contended that they were entitled to the abatement of 75% in the taxable value as the service providers, in this case the transporters, have met the condition of not availing credit on the inputs and capital goods for providing the taxable service, as mentioned in Notification 35/2004 ST dated 03.12.2004. Accordingly, they filed a refund claim for an amount of Rs.1,29,922/- paid by them in excess. The refund was sanctioned by the original adjudicating authority vide Order-in-Original dated 22.12.2006. The Commissioner of Central ....

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....tax paid by the Appellant on self-assessment was not challenged and hence the refund cannot be claimed without challenging the self-assessment. This issue is pending before the Larger Bench. He also cited the decision of the Hon'ble Apex Court in the case of ITC Ltd and contended that in the absence of challenge of self-assessment by the Appellant, refund cannot be claimed. He also stated that the original authority has not made any observation on unjust enrichment. He cited the decision of the Tribunal in the case of M.s Shiv Naresh Sports Pvt Ltd Vs Commissioner of Service Tax, Delhi III, in support of his contention that no refund was admissible without examining the ground of unjust enrichment and limitation. 4. Heard both sides and ....

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.... abatement (exemption) under Notification No.32/04-ST. Therefore, I decided to examine the aforesaid Ordr-In-Original as per powers conferred on me under Section 84 of said Act and accordingly a letter C. No. V(15)8-ST/Revision/Adjn/07/5440 dated 24.10.2007 was issued to RA intimating the matter is being re-examined under Section 84 of the said Act. 6. We observe that where the consignor or consignee is liable to pay Service Tax in respect of transport of goods by road and wish to avail the abatement provided under Notification 35/2004 dated 03.12.2004, they must ensure that the following conditions have been satisfied. (a) The invoice, bill or challan issued by goods transport agency shall include details of consignment note as presc....

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....ng (P) Ltd, the Tribunal, Ahmedabd has observed as under: The respondents are recipients of services under Heading 'Goods Transport Agency' and they have been held to be deemed service provider under Section 68(2) of the Finance Act. They have paid the service tax on the services availed by the as deemed service provider and availed the benefit of Notification No. 32/004, which enabled them to pay the service on a value of 25% of the freight paid to the transporter. The benefit of Notification No.32/2004 was available subject to produced the declarations from their transporters. However, when the matter was before the Commissioner (Appeals), the respondents produced the declarations. Taking note of this development, the Commissione....