TaxTMI 
TaxTMI 
2024 (9) TMI 1545
X X X X Extracts X X X X
X X X X Extracts X X X X
....Order-in-Original and rejected the appeal. 2. Briefly the facts of the present case are that the appellant is engaged in the business of manufacturing oral and other care products. The appellant was in receipt of GTA services during the period from April 2005 to September 2005 and was discharging Service Tax on the said GTA services under reverse charge mechanism as the recipient of the GTA services. A show cause notice dated 19.10.2006 proposing the demand of service tax along with interest and penalty was issued on the basis that the appellant is a GTA and not consignee or consignor of the goods thus the appellant has incorrectly availed the benefit of abatement on tax payable on the value of GTA services in terms of Notification No. 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that show cause notice is the foundation of the adjudication proceedings and the order confirming the demand proposed in the show cause notice cannot be passed by going beyond the allegations contained in the show cause notice. In this regard, he relied upon the following two cases: • Suzuki Motorcycle India Private Limited vs. Commissioner of Central Excise, Delhi-III 2023 (11) TMI 370 - CESTAT Chandigarh. • CC vs. Ballarpur Industries Ltd.- 2007 (215) ELT 489 (SC). 5. He further submits that the appellant has correctly availed the benefit of abatement of 75% from the payment of Service tax on receipt of GTA services in terms of Notification No. 32/2004 dated 03.12.2004. He further submits that the only finding....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the circular cannot be said to be mandatory and cannot go beyond the statutory requirements. Reliance in this regard, he placed the following cases: • Liberty Shoes Ltd. vs Commissioner of Central Excise & Service Tax, Delhi and Commissioner of Central Excise & Service Tax, Panchkula 2024 (8) TMI 1332 - CESTAT Chandigarh • Sandoz P. Ltd. vs. Commissioner of Central Excise, Raigad 2014 (33) S.T.R. 424 (Tri. - Mumbai) • Kharkia Alloys Pvt. Ltd. vs. C.C.E., New Delhi-l 2018 (7) TMI 1717 - CESTAT New Delhi., 6. As regards the demand of interest and penalty, the Ld. Counsel for the appellant further submits that when demand of tax itself not sustainable the question of interest doe not arise. 7. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orcycle India Private Limited cited (Supra), therefore, on this account, the demand is liable to be set aside. 9. Further, we find that the benefit of exemption notification has been denied on the ground that the conditions are not satisfied in terms of exemption notification for claiming the abatement the following conditions are satisfying, namely, (a) the Cenvat credit should not be availed on the inputs or capital goods used for transport service; and (b) the benefit of Notification 12/2003-ST should not be availed in respect of the goods transport agency service. We also find that the department has failed to prove that the conditions mentioned in the notification are not satisfied in the present case. The department has not brought....
X X X X Extracts X X X X
X X X X Extracts X X X X
....words, it was held that by issuing a circular a new condition thereby restricting the scope of the exemption or restricting or whittling it down cannot be imposed. The principle is applicable to the instant cases also, though the controversy is of different nature. 7. We also note that the lapse, if any, on the part of the appellants is merely procedural. In view of the case laws cited by the learned Counsel for the appellants, substantial benefit of abatement cannot be denied for procedural lapses. Moreover, we find that in an identical case, CESTAT has held in Sandoz (P) Ltd. (supra) that: 5. We observe that in this case appellant availed goods transport agency service and paid the Service Tax as per the Service Tax Rule....