TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1715
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....f Goods by Road service' (GTA) under section 65(105)(zzp) of Finance Act, 1994, in terms of said Rules. Further, since they had not provided any documentary proof from transporter, other than one M/s Shree Tirupati Transport, as required for the purpose of allowing abatement under Notification No.32/2004-ST dt.03.12.2004 and Notification No.01/2006 for the period prior to 01.03.2008, they would not be entitled for any abatement for the purpose of calculation of service tax liability also. Moreover, extended period has been invoked as they had neither taken registration under 'transportation of goods by road service' nor had shown/ included the value of taxable services in the ST3 returns with an intention to evade payment of tax. 3. On adjudication, the adjudicating authority has gone through various submissions made by the appellant including their submission that even if the services received from said transporter are GTA service, the service tax cannot be levied on them as the mine owners have already paid service tax on total freight on the same consignment and certificates to that effect have been issued by the said mine owners evidencing the discharge of service tax under ....
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....s. 5. Insofar as the issue of abatement is concerned, he has gone by the conditions under Notification No.32/2004-ST, which, inter alia, provided that if the goods transport agency has availed the benefit of cenvat and/or the benefit of notification 12/2003-ST, the exemption envisaged in this notification would not apply. Therefore, on strict construction, these conditions are required to be met and it is not a simple procedural compliance and held that these conditions have not been met despite producing three letters by one M/s Shree Tirupati Transport stating that they had not availed any Cenvat credit for providing GTA service during the period 2005-06. He considered that this condition of the notification has been satisfied but it does not speak about the availment of benefit of Notification No.12/2003-ST and they have also not produced any evidence in respect of remaining transporters from whom they received the impugned service. He also upheld the invocation of extended period. 6. On appeal, the main grounds taken by the appellant are, inter alia, as under: a) Services provided by the truck owners are not GTA service in terms of section 65(50b) of Finance Act,....
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....larations in terms of Circular F. No. B1/6/2005-TRU dt.27.07.2005, which has been rejected on flimsy grounds by the adjudicating authority. However, this declaration is also not relevant in terms of various judgments as under: a) CCE, Rajkot Vs Sunhill Ceramics Pvt Ltd [2008 (9) STR 530 (Tri-Ahmd)] b) Indian Oil Corp Ltd Vs CCE, Patna [2013 (29) STR 524 (Tri-Kol)] c) Lykes Line Ltd Vs CST, Mumbai-I [2017 (50) STR 51 (Tri-Mum)] d) Prakash Industries Ltd Vs CCE, Raipur [2015 (40) STR 804 (Tri-Del)] 9. He also submits that penalty cannot be simultaneously invoked under section 76 & 78. 10. Learned AR, on the other hand, apart from reiterating the findings of the adjudicating authority, has also, inter alia, submitted that notification has to be construed strictly and that there is no requirement for issuance of consignment note for being considered as GTA relying on the judgment in the case of Coromandel Agro Products & Oils Ltd Vs CCE, Guntur [2014 (33) STR 660 (Tri-Bang)]. 11. Heard both sides and perused the records. 12. The core issues, which are required to be examined, are as under: a) Whether the Truck Operators/Transport....
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....rvice tax when he receives GTA service, irrespective to his being service recipient. The relevant Rule is cited below for ease of reference. "Rule 2(1)(d) - "person liable for paying service tax" means - (i) ... (ii) ... (iii) ... (iv) ... (v) 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 b) any company formed or registered under Companies Act, 1956 c) any corporation established under any law d) any society registered under the Societies Registration Act, 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 or the rules made thereunder; or g) any body 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 ....
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....ging section for levy of service tax and it can only regulate the manner of collection once the taxable service itself is provided or leviable to service tax in terms of section 66 of the Act. Therefore, the first and foremost condition is that taxable service has to be provided by the provider of service i.e., transporter of goods, to the recipient of said service and only thereafter, by applying Rule 2(1)(d)(v), it has to be determined as to who shall be liable to pay the said service tax. In the present factual matrix, apart from appellant having not received the taxable service from the provider i.e., transporters/ truck operators inasmuch as there is no consignment note, he is also not even liable to pay freight and it is the mine owners, who were actually liable to pay freight and have either paid the freight or have reimbursed the same to the appellant. In any case, as a defence, appellant had submitted to department that the mine owners have paid the freight and have also paid applicable service tax as recipient. Therefore, even if it is presumed that they had paid the freight and therefore, liable to pay service tax, the appellant's contention that it was being paid by the....
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....ues consignment note, by whatever name called; It is clear that to be called "goods transport agency" a person should fulfill two conditions, namely, he should provide service in relation to transport of goods by road and issue consignment note, by whatever name called. In the present case, admittedly, no consignment note was issued by the goods transporter. The original authority held that the slip/challans issued for monitoring purposes by the appellant (receiver of service) will satisfy such conditions and tax liability can be upheld. We are unable to understand or appreciate such reasoning. The original authority is creating an amalgamation of service provider and recipient to fit in the definition of Goods Transport Agency. In other words, the transport of coal is done by the transport contractor which satisfied the first condition but no consignment note being issued. The slip issued by the appellant as recipient of service is taken with such activity of transport to bring in tax liability. We find that such attempt is beyond the scope of law and without merit." 18.2 In the case of CCE & C, Guntur Vs Kanaka Durga Agro Oil Products Pvt Ltd [2009 (15) STR 399 (Tri-B....
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....intellectual property services other than copy right; 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 the risk premium. I may clarify that there is no intention to levy service tax on truck owners or truck operators. Nor, as was clarified by my predecessor, is there any intention to levy service tax On the savings part of the premium collected by, an insurer." 18.4 In the case of Shanti Fortune (I) Pvt Ltd Vs CCE, Coimbatore [2010 (19) STR 883 (Tri-Chennai)], relying on the judgment of Kanaka Durga Agro Oil Products Pvt Ltd (supra), it was decided in favour of the appellant holding that there is no liability of recipient of service in case of transportation undertaken by individual truck operators and not by GTA. 18.5 Apart from the above, the appellant has also relied on the judgment in the case of Srivalli Shipping & Transport Pvt Ltd Vs CCE, Vizag [2018 (10) GSTL 450 (Tri-Hyd)], where the appellant had engaged vehicles/trucks from various transport organizations and were sent to t....
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....s abundant jurisprudential justification for this. In the Governance of rule of law by a written Constitution, there is no implied power of taxation. The tax power must be specifically conferred and it should be strictly in accordance with the power so endowed by the Constitution itself. It is for this reason that the Courts insist upon strict compliance before a State demands and extracts money from its citizens towards various taxes. Any ambiguity in a taxation provision, therefore, is interpreted in favour of the subject/assessee. The statement of law that ambiguity in a taxation statute should be interpreted strictly and in the event of ambiguity the benefit should go to the subject/assessee may warrant visualizing different situations. For instance, if there is ambiguity in the subject of tax, that is to say, who are the persons or things liable to pay tax, and whether the revenue has established conditions before raising and justifying a demand. Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as may arise within the strict language of the law. There cannot be any implied concept either in identif....