TaxTMI 
TaxTMI 
2024 (6) TMI 348
X X X X Extracts X X X X
X X X X Extracts X X X X
....Anti Evasion Branch of CGST Hqrs., Udaipur demanding financial documents as that of income tax returns, balance sheets, Form 26 AS, contract/agreements etc. for the period 2013-14 to 2017-18. Requisite documents were provided by the appellant vide their letter dated 05.10.2018. From the perusal of these documents department observed that the appellant, in addition to providing construction services as registered contractor in PWD Department, is also a partner in petrol pump namely, M/s. Hari Priya Filling station. The appellant had provided trucks to the said firm and to other firms/persons/organizations as well and have received payments for the same. The said payments are reflected as freight in their profit and loss account. The copy of agreement dated 26.12.2013, as submitted by the appellant, was the one entered between M/s. Bharat Petroleum Corporation Ltd. (BPCL) and M/s. Shreenath & Co. Similar was the agreement between M/s. Essar Oil Ltd. and M/s. Vishnu Priya Filling Station dated 01.10.2013 for transportation of branded fuels ex Udaipur depot into tank lorries . These companies have further awarded the work of transportation of BPCL/Essar for transportation of the said b....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Shri Harshvardhan, learned Authorized Representative for the department. 3. Learned counsel for the appellant has mentioned that the income received by appellant during the Financial Year 2013-14 to 2016-17 is the income from transportation of goods (branded fuels) as was shown in their profit and loss account. The appellant was using its truck lorries/tankers for transportation of petroleum products instead of giving its tanker/trucks on hire to. M/s. Shreenath & Co. and M/s. Hari Priya Filling station. They were not even paying any rent for getting truck lorries/tankers from the appellant. Both these companies were contracted by BPCL/Essar for the purpose. They sub-contracted the activity with the appellant. The sub-contracting does not change the nature of the activity i.e. transportation of branded fuel. The contracts between appellant, sub-contractor and the said companies is absolutely silent about taking the trucks/tanks of the appellant on hire. Thus, the activity performed by appellant was of transportation of goods by road. The only flaw is that the consignment note though was issued by the appellant in favour of M/s. Vishnu Priya Filling Station but the same was not is....
X X X X Extracts X X X X
X X X X Extracts X X X X
....". The companies for whom the appellant was providing tankers or trucks were also not registered as GTA The apparent fact on record is that neither the companies nor the appellant has issued consignment note which is mandatory to hold that the activity done is that 'Transportation of Goods'. Learned Departmental Representative has relied upon the decision in the case of East India Minerals Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax, Bhubanswar-II reported as 2021 (44) GSTL 90 (Tri.- Kolkata) . It is impressed upon that the activity of the appellant has rightly denied to be the activity of transportation of goods. 4.1 The other contention of the appellant that they are eligible for exemption under Notification No. 25/2012 is also not sustainable for the same reason of absence of the consignment notes. In the case of contractor M/s. Vishnu Priya Filling Station, since consignment notes were issued the adjudicating authority has already dropped the demand extending the benefit of the said notification. But for remaining two contractors the demand therefore has rightly been confirmed. 4.2 While submitting on the ground of limitation and about imposition of penalty....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or. The security deposit was also asked on per tanker/lorry basis. The character and antecedents of tanker/lorry crew from the competent concerned authorities for issuing the identity card were also called for from the contractor on the date of agreement itself. The tanker or lorry offered was required to comply with valid terms, at all, times of the permits issued and those permits were also to be submitted at the time of agreement itself. The tanker or lorries were required not to be black listed by any of the oil industries nor to be under the contract with other oil companies. 7. We further observe that the said M/s. Shreenath & Co., subsequent to the above discussed agreement with BPCL awarded the work of transportation of BPCL goods (branded fuel) on their behalf to the appellant vide a letter dated 20.06.2014. It has been specifically mentioned in the said letter that M/s. Shreenath & Co. had been awarded with the work of transportation of BPCL goods (branded fuel) and as per the appellants consent the truck/tanker/lorries of appellants also got approved by BPCL in the said work order itself. The work of transportation of BPCL goods was awarded by M/s. Shreenath & Co. to th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... account of the taxable services provided by the assessee as the same are neither covered under negative list of the services as per Section 66D of the Finance Act, 1994 nor exempted vide any Service Tax Notification including Mega Exemption Notification No. 25/2012-ST dated 20.06.2012 and hence attract the levy of service tax under Section 66B of the Finance Act, 1994 during the period in dispute. 10. To adjudicate the correctness we look into the Section 66D of the Act and observed that clause (p) of this section reads as follows: Section 66D: Negative list of services - The negative list shall comprise of the following services, namely: (a) xxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxx (C) xxxxxxxxxxxxxxxxx Xxxxxxxxxxxxxxxxxxxxx (p) Services by way of transportation of goods- (i) by road except the service of - (A) a goods transport agency (GTA); or (B) a courier agency 11. The bare perusal makes it clear that if any person is providing services of transport of goods by road, and his is neither covered under the statutory definition of GTA, nor under courier agency, then he is not liable to pay any service tax on such transportation. The definition of GTA i....