TaxTMI 
TaxTMI 
2026 (3) TMI 1528
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....FG0619KSD001. 3. The Appellant were under the bona fide belief that the service of 'Transport of Goods by Road' provided by them were exempted from levy of Service Tax as per Clause (p) of Section 66D of the Finance Act, 1994 i.e., Negative List as well as Service Tax on 'Goods Transport Agency' is payable under Reverse Charge Mechanism [RCM] 4. On the basis of third-party data received from the Income Tax Department, under the data sharing protocol, showing the receipts of Rs.6,08,06,849/- to the Appellant, it was alleged that the Appellant had rendered taxable services during the Financial Year 2015-16 and have not paid the applicable Service Tax on the said receipts. 5. On the aforesaid facts, Show Cause Notice [SCN] dated 23.12.2020 was issued invoking extended period, directing the Appellant to show cause as to why service tax of Rs.88,16,993/- along with interest may not be demanded and recovered from the Appellant and as to why penalty be not imposed on them. The Appellant submitted at all the forums that SCN was never received by them. The SCN was adjudicated ex-parte against the Appellant confirming demand of service tax of Rs.88,16,993/- along with interest and e....
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.... 2019 (24) G.S.T.L. 606 (Tri. All.); b. Sharma Fabricators & Erectors Pvt. Ltd. Vs. CCE, Allahabad reported in 2017 (5) G.S.T.L. 96 (Tri. -All.); c. Commissioner vs. Sharma Fabricators & Erectors Pvt. Ltd. - 2019 (22) G.S.T.L. J166 (All.); d. SHRI RAJESHWAR PRASAD CHOUDHARI VERSUS COMMISSIONER OF CGST & CENTRAL EXCISE, RANCHI 2023 (12) TMI 46 CESTAT Kolkata; e. COMMISSIONER OF CGST & CE, MUMBAI EAST VERSUS MODERN ROAD MAKERS PVT. LTD. 2023 (8) TMI 48 CESTAT- Mumbai. 11. It has been further submitted that the alleged SCN was issued without pre-consultation as it involves Service Tax amount of Rs.88,16,993/- i.e., more than Rs.50 lakhs. As per provisions of Para 5.0 of the Master Circular No.1053/02/2017CX dated 10.03.2017, it is a mandatory condition to call for pre-consultation wherein Service Tax is more than Rs.50 lakhs. Therefore, the said SCN is not sustainable ab-initio. Reliance has been placed on various case laws in this regard in their appeal. 12. The Ld. Advocate has submitted certificates issued by the Chartered Accountant, certifying the heads wherein no consignment notes were issued. In other case, the Service Tax is payable by....
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....nue justified the impugned order and prayed that the appeal filed by the Appellant, being devoid of any merits, may be dismissed. 20. Heard both the sides and perused the appeal records. 21. We observe that impugned SCN was issued on 23.12.2020 demanding the Service Tax for the F.Y. 2015-16. The Appellants have contended that the period upto 31.10.2015 is beyond the period of 5 years and therefore, the demand up to 31.10.2015 in any case is beyond the period of limitation. For the remaining period also, there is no positive evidence indicating fraud or suppression of facts, with intent to evade payment of Service Tax and as such, the demand is not sustainable being barred by limitation. The Appellant has relied upon the decision of the Tribunal in the case of M/s. MSP Sponge Iron Ltd. vs. Commissioner of CGST & C.X, Rourkela Commissionerate reported in 2022 (6) TMI 911-CESTAT Kolkata. 22. We have gone through the facts of the case and the case law relied upon by the Appellant. We find force in the contention of the Appellants that the period up to 31.10.2015 is beyond the period of 5 years. In our view, the SCN dated 23.12.2020 cannot demand Service Tax liability for the p....
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.... had come up for consideration in the case of M/s Sharma Fabricators & Erectors Pvt. Ltd. Vs. C.C.E., Allahabad reported as 2017 (5) G.S.T.L. 96 (Tri.-All.) wherein it was held as under:- "3. Heard the ld. Counsel for M/s. Sharma he has basically argued that the said Show Cause Notices were not issued by examining the books of account maintained by M/s. Sharma. The Show Cause Notices were based on the presumptions and third-party information. He has argued that even when the payments were not made by the clients but the clients booked the expenditure in their books of account they were required to pay the related tax deducted at source to the exchequer and issue a certificate of TDS and incorporate the same in the return called 26AS filed with the Income Tax Authorities and such information cannot be the basis for arrival of the consideration received by the service provider. He has submitted that both the Show Cause Notices were issued without examining the books of account maintained by M/s. Sharma and were issued on the basis of presumptions about the consideration received by M/s. Sharma. The considerations taken into account for issue of Show Cause Notices was in no w....
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.... recorded in the books of account cannot be held to be contrary to the facts. Therefore, we hold that the said Show Cause Notices are not sustainable. Since the said Show Cause Notices are not sustainable, appeal bearing No. ST/890/2010 filed by M/s. Sharma is allowed and appeal bearing No. ST/949/2010 filed by Revenue is dismissed. Miscellaneous Applications also stand disposed of. Cross Objection also disposed of." We find that the decision of the Tribunal in the case of Sharma Fabricators & Erectors Pvt. Ltd. (Supra) has been upheld by the Hon'ble High Court of Allahabad reported as 2019 (22) G.S.T.L. J166 (All.). 26. We find that the Appellant had submitted before the learned Commissioner (Appeals) as well as before us, the entire breakup of the amount shown as received in the ITR return alongwith detailed explanations. They also produced certificates issued by the Chartered Accountant and Affidavit sworn by them that in case of 'Transportation of goods by road' the amount received by them falls under the category of Negative List and as "Goods Transport Agency' service recipient was liable to discharge the service tax liability in terms of Notification No.30/2012-ST date....
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....e transportation was carried out through own vehicles without issuance of GR/consignment note, such activity falls outside the ambit of taxable GTA service and is covered under clause (p) of Section 66D (Negative List). Accordingly, receipts attributable to such transportation are not liable to Service Tax. 30. We observe that in a similar matter in the case of Shri Dharmraj Singh vs. Commissioner of Customs, Central Excise & Service Tax, Allahabad 2024 (2) TMI 501- CESTAT Allahabad, in Para 4.4 of the said order the Tribunal observed as under: - "4.4 In case of The Ramco Cements Limited [Final Order No.40853 / 2023 dated 27.09.2023] Chennai Bench has held as follows:- "11.1 In the case of M/s. K.M.B. Granites Pvt. Ltd. v. Commissioner of C.Ex., Salem [2010 (19) S.T.R. 437 (Tri. - Chennai)] this Bench had an occasion to consider an almost similar issue of liability to Service Tax on services of GTA vis-à-vis Rule 2(1)(d)(v) ibid. After hearing both sides, this Bench has held as under: - "3. Heard both sides. It has been consistently contested by the assessees that services were not being provided to them by the Goods Transport Agency but by indi....