TaxTMI 
TaxTMI 
2024 (11) TMI 209
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....es and therefore the appellant is liable to pay service tax under reverse charge mechanism. Therefore, the present appeal filed by the appellant before this Tribunal. 2. Shri Keyur Kamdar, Learned Chartered Accountant appearing on behalf of the appellant submits that in the present case the transport service was availed which was provided by the truck owners who have declared on the nonjudicial stamp paper that they have not issued any consignment note. He submits that in cases where consignment notes were issued by GTA the appellant have discharge the service tax. Therefore, only in case where there is no consignment note appellant have not paid the duty which is correct as per the law. He submits that the adjudicating authority has rightly dropped the demand as there was no consignment note. The Commissioner (Appeals) has given wrong findings that the monthly bill is a consignment note whereas the bill cannot be treated as consignment note for the reason that there are specific informations which should appear in the consignment note as per the rule. Whereas in the monthly bill all such details are not appearing, therefore, the bill cannot be treated as consignment note. Hence, ....
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....6183/2017/STB, dated 8-2-2017 in Appeal No. ST/412/2012-MUM passed following order. "6. We have considered the submissions made by both sides and perused the records. 6.1 We find that the first appellate authority as well as the adjudicating authority have erred in coming to a conclusion that in this case the service tax liability arises. 6.2 It is seen from the records that the movement of cement clinkers from jetty to the manufacturing premises of the appellant is done by the trucks of two transport companies. It is also undisputed that cement clinkers is received at the jetty from the factories of the appellant. We find from the records that nowhere it is mentioned that these two transport companies issued consignment note either individually or jointly for the movement of the cement clinkers from jetty to the manufacturing premises of the appellant. It is noticed that the activity of transporting cement clinkers from jetty to the factory premises of the appellant is based upon the contract and perusal of such contract, we find that the said contract specifically states about transporting cement clinkers from jetty to manufacturing premises by these two transport companies....
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....ods carriage." In terms of Section 65(50a) ibid "Goods Carriage" has the meaning assigned to it in clause 14 of Section 2 of the Motor Vehicles Act, 1988. In terms of Section 65(50b), "Goods Transport Agency" means any commercial concern which provides service in relation to transport of goods by road and issues consignment note, by whatever name called. The Service Tax has been demanded from the Appellants as service recipient under Rule 2(1)(d)(v) of the Service Tax [Rules], 1994 read with Notification No. 35/2004-S.T., dated 3-12-2004, on the payments made by them to transporters against the fortnightly bills being presented by them. While admittedly no consignment notes or GRs have been issued by the transports, according to the Department the Transporter's bills are in the nature of the consignment notes. Under Rule 4B of the Service Tax Rules, 1994, "any Goods Transport Agency which provide service in relation to transport of goods by road in a goods carriage shall issue a consignment note to the customer. In term of Explanation to Rule 4B, "Consignment Note" means - a document issued by Goods Transport Agency against the receipt of goods for the purpose of its transport by r....
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....ainable and the same are set aside. The appeals filed by M/s. Nandganj and M/s. Bajpur are allowed. As regards the Revenue's appeal, since it has been held that there is no Service Tax liability of the Appellants, there would be no merits in it and the same is dismissed." 6.5 The abovesaid ratio would squarely covers the issue in the case in hand and accordingly we hold that the impugned order is unsustainable and is liable to be set aside and we do so. 7. The impugned order is set aside and the appeal is allowed." In view of above Tribunal decision which has considered the same issue in length after analyzing the settled legal position and came to the conclusion that the appellant in respect of service in question, under the facts and circumstances not liable to service tax hence the appeal was allowed. Therefore the issue is no longer res integra. We, following the above judgment of Tribunal in appellant's own case, set aside the impugned order and allow the appeal." 4.2 In another case of Nandganj Sihor Sugar Co. Ltd (Supra) having identical facts that whether the bill should be treated as consignment note or otherwise, this Tribunal has passed the following order:- "5.....
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....not the service provided by a Goods Transport Agency. A Goods Transport Agency in terms of its definition under Section 65(50b) provides service in relation to transportation of goods under a consignment note which should have the particulars as prescribed in explanation to Rule 4B. In the present case admittedly no consignment notes have been issued. The fortnightly bills cannot be treated as consignment notes, as a consignment note issued by Goods Transport Agency represent its liability to transport the consignment handed over to it to the destination and deliver the same to the consignee and merely a bill issued for transportation of goods cannot be treated as Consignment Note. The fact of non-issue of consignment to M/s. Nandganj is admitted in the show cause notice itself. In case of M/s. Bajpur though it is not mentioned in the show cause notice, this plea has been made by the Appellant and the same has not been refuted. The transportation of goods by individual truck owners without issue of consignment note, GR's & billties, etc. as prescribed in Rule 4B of the Service Tax Rules, would be simple transportation and not the service of Goods Transport Agency which involves not....