TaxTMI 
TaxTMI 
TaxTMI 
2025 (2) TMI 627
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....o the statement of demand (SOD in short) No.27/2014 dated 19.03.2014 for the period April 2012 to June 2012 and SCN No.225/2014 dated 09.09.2014 for the period July 2012 to March 2013, inter-alia, confirmed demands of Service tax of Rs.4,70,339/- and Rs.54,37,054 respectively as payable under Section 73(1) of the Act ibid, imposed penalty as stipulated in Section 76 of the Act ibid in respect of the demands pertaining to the aforementioned SOD dated 19.03.2014 and SCN dated 09.09.2014 and imposed a penalty of Rs.5000/- under Section 77 of the Act. The Adjudicating Authority has also demanded interest in terms of Section 75 of the Act ibid on the aforementioned amounts demanded from the appellant, and further appropriated an amount of Rs.38,239/- paid as well as an amount of Rs.14049/- paid towards the demand confirmed and interest due in respect of the SCN No.77/2013 dated 30.09.2013. 2. Facts, to the extent they are relevant for determining the disputes herein are that, the appellant M/s. Seaport Logistics Pvt Ltd, registered for payment of service tax under the categories of CHA Services, Port Services, Business Auxiliary Service and Goods Transport Service, and engaged in provi....
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....whom the appellant had provided GTA services have not replied to DGCEI's letter dated 05.09.2013. The learned counsel submits that they have given the required certificate to DGCEI on 05.09.2013 as has been recorded in para 5.11 of the OIO and yet for the reason that these companies had not responded to the further queries from DGCEI cannot be a reason to confirm the demand on the appellant when the appellant has proved that reverse charge is applicable in this case. It is submitted that the adjudicating authority's observation that these companies have paid service tax as per their returns as service providers cannot lead to any presumption as they are not GTAs and mere wrong selection in the drop-down box of the return cannot lead to such a presumption. That the observations regarding work orders made are also irrelevant and cannot cast any liability on the appellant and the finding that the invoices issued by them cannot be considered consignment note would then be as if no consignment notes are issued and then the appellant cannot be considered as a GTA as per the definition as transportation services provided by other than a GTA are not liable to levy of service tax both prior....
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.... provided as under: "Person liable for paying the service tax means, In relation to taxable service provided by a goods transport agency, where the consignor or consignee of goods is,- (a) any factory registered under or governed by the Factories Act, 1948 (63 of 1948); (b) any company established by or under the Companies Act, 1956 (1 of 1956); (c) any corporation established by or under any law; (d) any society registered under the Societies Registration Act, 1860 (21 of 1860) or under any law corresponding to that Act in force in any part of India; (e) any co-operative society established by or under any law; (f) any dealer of excisable goods, who is registered under the Central Excise Act, 1944(1 of 1944) or the rules made thereunder; or (g) anybody corporate established, or a partnership firm registered, by or under any law; Any person who pays or is liable to pay freight either himself or through his agent for the transportation of such goods by road in a goods carriage;" 11. Thus, while notifying the services in relation to transport of goods by road in a goods carriage to the entities identified, whether they are a consignor or consignee, as the service....
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....prevailing provisions noticed supra, then the appellant as a service provider of GTA is under no obligation to pay service tax as the onus to discharge the service tax payment has shifted to the respective consignor or consignee who is liable to pay the freight and are the recipient of the services of GTA provided by the appellant. 14. Now it remains to be seen whether the appellant has evidenced that its clients/customers would fall under the specified entities who would then be liable irrespective of whether they are a consignor or consignee as long as they are the ones who pay or are liable to pay freight. We find that the adjudicating authority has recorded in the impugned OIO that it is the appellant's stand that they are providing services to companies who are registered under the Companies Act, 1956. It is also seen from the appellants' replies to the SCNs that it is also their stand that they have clearly stated in their invoices that the service tax liability will be paid by either consignor or consignee and had enclosed sample invoices for the adjudicating authority's verification along with complete parties list and service amount for reference. While the adjudicating a....
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....g agency DGCEI, who are amply empowered under statute to collect evidence in case they deem it so necessary, by way of issuance of summons under Section 14 of the Central Excise Act, 1944 of which they would be undoubtedly aware of. It was, in any event for DGCEI to take up the matter with the concerned parties and that ought not have weighed against the appellant in the adjudicating authority's appreciation of the matter. Thus, in the light of the categorical assertion by the clients/customers of the appellant that they had discharged the service tax liability in respect of the GTA services provided by the appellant and received by them, any incorrect indication in the returns of these customers/clients can't be a ground to require the appellant to discharge service tax on GTA service. We also find that the discussion on the work orders produced by the appellant is vague and without any conclusion. In any event, when the adjudicating authority itself has found that the work orders do not pertain to the relevant period, then embarking on any discussion on them itself was a superfluous exercise. As regards the finding of the adjudicating authority on lack of details required as per ....
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....demand further proof from the appellant when the obligation to pay service tax itself for the GTA services rendered by the appellant was on such service recipients in the first place. It is also a pertinent factor that the law neither mandates the appellant to prove that the service recipient has discharged its liability to pay service tax on the GTA services received, nor does it mandate, as observed supra, that in the event of such service recipient not discharging its liability to pay service tax, such liability would then shift back on to the appellant. 17. Therefore, the adjudicating authority grossly erred in confirming the demand of service tax on GTA services on the appellant on the ground that the appellant has not proved that the service tax has been paid by the recipients. When the position in law as emanating from the discussions above is that the onus of discharging the service tax on GTA services received itself, was on the customers of the appellant, then such a confirmation of demand as has been made in the instant case, cannot be sustained and the demand on GTA services to the extent of the amounts stated as disputed in this appeal by the counsel for the appellant....