TaxTMI 
TaxTMI 
2024 (8) TMI 846
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.... tax under the category of GTA Service under reverse charge mechanism, for the amount of Rs. 11,07,215/- along with interest and penalty. The said show cause notice was adjudicated by the Adjudicating Authority vide order-in-original No. 165/ADJ/ADC-KSM/OA/2016-16 dated 29.02.2016 whereby the proposal made in the show cause notice has been confirmed and demand of service tax of Rs. 10,85,973/- along with interest and imposition of penalties under Section 77 and 78 was confirmed. Being aggrieved by the said order-in- original the appellant filed appeal before the Commissioner (Appeals) who vide order-in-appeal No.CCESA-SRT-APPEAL-PS-198-2017-18 dated 15.11.2017 which is impugned herein, upheld the order-in-original and rejected the appeal filed by the appellant. Therefore the present appeal filed by the appellant before this Tribunal. 2. Shri Jigar Shah, learned Counsel with Shri Amber Kumarawat, Advocate appearing for the appellant, at the outset submits that though the appellant have received transportation service but no consignment note was issued by the transporters. It is trite law that to classify transporter service under GTA service, it is necessary that the transporter ....
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....e demand has been raised upon the appellant alleging that they are the recipient of services of goods transport agency services provided by the CHA. Admittedly, the appellant has not been issued a consignment note. 13. The Tribunal in the case of Carris Pipes and Tubes Pvt. Ltd. (supra) had occasion to consider the similar issue has observed as under:- "5. The main contention put forward by the appellant is that they had availed the services of individual transporters/truck owners. Appellants had prepared vouchers to evidence the payment of freight charges to these transporters. On perusal of the documents, we find that it does not contain any detail with respect to the goods consigned. These vouchers were nothing but documents for monitoring the payment of freight charges to the transporter and can, in no way, be construed as a consignment note. It does not, therefore, evidence the receipt of goods by the consignee, but merely the details of the vehicle, trip and the freight charges paid. The same cannot be called a consignment note as under Section 65(50b) of the Finance Act, 1994. A similar issue was considered by the Tribunal in South Eastern Coalfields Ltd. (....
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....ability. We find that such attempt is beyond the scope of law and without merit. 7. The matter has come up for decisions on earlier occasions by the Tribunal in NandganjSihori Sugar Co. Ltd. and Others v. C.C.E. Lucknow - 2014 (34) S.T.R. 850 (Tri. -Del.), it was held that the Goods Transport Agency in terms of its definition under Section 65(50b) provides services in relation to transportation of goods and issues consignment note which should have particulars as prescribed in Explanation to Rule 4B. 8. In cases where admittedly no consignment notes have been issued, the said transporter cannot be called Goods Transport Agency. In Birla Ready-mix - 2013 (30) S.T.R. 99 ((Tri. -Del.), it was held that the provisions of the Act has to prevail and the definition at Section 65(50b) has to be understood independent of Rule 4B of the Service Tax Rules, 1994 to decide whether the person concerned is a goods transport agency. 9. In Northern Coalfields Limited v. C.C.E., Bhopal vide Final Order No. 53313/2015, dated 29-10-2015, an identical situation was examined by the Tribunal. There also, the payment slips were generated by the service recipient containing relev....
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.... the reserve charge mechanism. 21. It would, therefore, not be necessary to examine the other contentions raised by the learned counsel on behalf of the appellant. 22. The order dated 13-7-2016 passed by the Commissioner, therefore, cannot be sustained. It is, accordingly, set aside and the appeal is allowed." 17.1 The Tribunal in the case of JWC Logistics Pvt. Ltd. (supra), had occasion to make a discussion with regard to the distinction between invoices and consignment note. It was held that unless a consignment note is issued, the ingredients of goods transport agency services are not satisfied and therefore the demand under the said category cannot survive. "7. The case of Revenue is that a transporter has been used and monthly bills, containing essential ingredients of the consignment note, as laid down in Rule 4B of Service Tax Rules, 1994 were issued. According to Learned Authorised Representative, with Rule 4B prescribing the contents of a consignment note, decision in re Bharathi Soap Works on non-issue of consignment note which is normative, tax liability of the recipient does not get erased. 8. It is not the transportation of ....
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....ESTAT "4. On careful consideration of the submission made by both the sides and perusal of record, we find that the facts are not under dispute that the service of transportation was provided by tractor trolley owners themselves and no transport agency is involved. Freight of the transportation was paid by the appellant to such tractor trolley owner for the transportation of goods i.e. Gas cylinder, no LR/consignment note was issued. In this case even though the transportation activity is involved but the criteria for classifying a transport service under GTA are not fulfilled. Such as no consignment note/LR was issued and the transportation was provided by not the goods transport agency but individual tractor trolley owners Therefore, the service does not fall under the definition of GTA service. Accordingly, in our considered view the same is not taxable in the hands of the appellant. This issue has been considered time and again in the following judgments: a) In the case of Lakshminarayana Mining Co. 2009 (16) STR (69) Bangalore Tribunal has passed the following decisions: "4. We have heard both sides. We find that the appellants paid service tax under....
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....t the claim of the appellants that the impugned services were not exigible to service tax is amply supported by the following extract of the Budget Speech of the Finance Minister, made while introducing the Finance Bill, 2004. "149. 58 services have been brought under the net so far. I propose to add some more this year. These are business exhibition services; airport services; services provided by transport booking agents, transport of goods by air; survey and exploration services; opinion poll services; intellectual property services other than copyright; brokers of forward contracts; pandal and shamiana contractors; outdoor caterers; independent TV/radio programme producers; construction services in respect of commercial or industrial constructions; and life insurance services to the extent of risk premium. I may clarify that there is no intention to levy service tax on truck owners or truck operators. " 5.2 From the above pronouncement by the Finance Minister, the legislative intent not to tax truck owners or truck operators is beyond doubt. In the absence of a finding that the appellants had received the service of transport of goods from any GTA, the impugne....
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....d therefore, the assessee was entitled to Cenvat credit." 4. The question of law that arises for consideration in this appeal having since been answered by the Division Bench in the above referred appeal, the substantial question of law are answered in favour of the assessee and against the revenue." c) Similarly in the case of Bharat Swabhiman, this Tribunal has passed the following order: "18. 'Goods transport agency' service has been defined in Section 65(26) of the Finance Act to mean any person who provides service in relation to transport of goods by road and issues consignment notes, by whatever name called. In the present case, consignment notes have not been issued and so the activities cannot be said to be covered under 'goods transport agency' services. 19. In this connection it would be useful to refer to the decision of the Tribunal in Bhoramdeo Sahakari Shakhar Utpadam Karkhana v. Commissioner of Customs, Central Excise & Service Tax, Raipur [2019 (10) TMI 1416-CESTAT, New Delhi], wherein it has been held that service tax can be levied only if consignment notes are issued. 20. Thus, service tax liability could not have been....
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....Final Order Nos. ST/A/50679-50681/2014-CU(DB), dated 13-1-2014 [2014 (34) S.T.R. 850 (Tribunal) and in NandganjSihori Sugar Co. Ltd. and others v. C.C.E., Lucknow unambiguously enunciated the principle that qua the definition of "Goods Transport Agency" enacted in Section 65(50b) of the Act, to fall within the ambit of the defined expression issuance of a consignment note is non-derogable ingredient. 7. In view of the law declared and the factual matrix of this appeal since where admittedly no consignment notes were issued by the 24 transporters for transportation of the appellant's coal, the Goods Transport Agency service cannot be held to have been rendered. That being the position the appellant is not liable to tax." 11. We note that the pursuant to directions of the Hon'ble Chhattisgarh High Court [2016 (41) S.T.R. 608 (Chhattisgarh)], in the remand proceedings, the Tribunal in its Final Order dated 28-7-2016 has re-affirmed the aforesaid legal position to hold that the assessee has not received any GTA service, so as to make them amenable to service tax in absence of consignment notes. The issue of consignment note, is a non-derogable ingredient to make the "....
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.... per the following order: "13. We have carefully gone through the submissions made by the Learned Advocate for the appellant for allowing the misc. applications, seeking incorporation of additional ground. The misc. applications have been filed by the appellant in terms of Rule 10 of CESTAT (Procedure) Rules, 1982 which, for the sake of convenience, is reproduced below : Grounds which may be taken in Rule 10. appeal. - The appellant shall not, except by leave of the Tribunal, urge or be heard in support of any grounds not set forth in the memorandum of appeal or those taken by leave of the Tribunal under these rules : Provided that the Tribunal shall not rest its decision on any other grounds unless the party who may be affected thereby has had a sufficient opportunity of being heard on that ground. In this connection, we take note of the decision of the Hon'ble Supreme Court (Three Member Bench), in the case of National Thermal Power Co. Ltd. v. Commissioner of Income Tax, reported in 1998 (99) E.L.T. 200 (S.C.), which is to the effect that the Tribunal has jurisdiction to examine the question of law which arises on facts, as found by the author....
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....ad and issues the consignment note. From the above legal position, it clear that not all the person who transport of goods by road are qualified as Goods Transport Agency. To qualify as services of GTA, the GTA should issue necessarily a consignment note then only services provided by the GTA are taxable under Finance Act, 1994. In the present matter it is admitted fact that in case of supply of transportation of goods services to M/s FCPL. Appellant have not issued any consignment notes. M/s FCPL issued consignment notes/LRs to consignee/consignor of goods. In such circumstance Appellant is not qualified under the Goods Transport Agency as per the above definition of GTA. Services of transportation of goods by a person other than GTA are clearly exempt under Section 66D (P)(i)(A) of the Finance Act, 1994. By observing the above legal position we find that the services of appellant is clearly excluded from the taxable services since it is covered 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 o....
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....y the Hon'ble Supreme Court reported at - 2024 (4) TMI 8 (SC) wherein the Hon'ble Supreme Court ordered as under :- ORDER "1. Delay condoned. 2. We are not inclined to interfere with the impugned judgment passed by the Custom Excise and Service Tax Appellate Tribunal, West Zonal Bench at Ahmedabad in Service Tax Appeal No. 10857/2022. 3. The Civil Appeal is dismissed." 5. In view of the above decisions, it is settled that as per facts involved in the present case, applying the ratio of the above judgments, the demand under GTA service is not sustainable. Hence the impugned order is set-aside and appeal is allowed. ( Pronounced in the open court on 14. 08. 2024 ) ============= Document 1 Fine Tech Corporation Pvt Ltd Reliance Corporate Park: 5 TTC Ishurtal Ares, Thane Belapur Road, Ghanali Navi Mumbai -400701 PAN AAACES232A 35 Driv Driver Copy CAUTION This consignment will not be detained, diverted, rerouteul without Consignee Bank's written permission, will be delivered at the destinations AT OWNER'S RISK Address of Delivery Office : RELIANCE INDUSTRIES LIMITED VILLAGE MORA, POST BHATHA TALUKA CHORYASL ILAZIRA SURAT-J....