Custom, Excise & Service Tax Tribunal
C.C.E., Raipur vs M/S. Hitech Power & Steel Ltd on 27 November, 2015
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI 110 066
Date of Hearing 27.11.2015
For Approval & Signature :
Honble Honble Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3.
Whether Lordships wish to see the fair copy of the order?
Seen
4.
Whether order is to be circulated to the Department Authorities?
Yes
Appeal No. ST/172/2009-CU[DB]
[Arising out of Order-in-Appeal No.35(ST)/RPR-I/2008, dated 17.12.2008 passed by the C.C.E.(Appeals), Raipur-I]
C.C.E., Raipur Appellant
Vs.
M/s. Hitech Power & Steel Ltd. Respondent
Appearance Mr. K. Poddar, DR - for the appellant Mr. Bipin Garg, Advocate - for the respondent CORAM: Honble Justice G. Raghuram, President Honble Mr. R.K. Singh, Member (Technical) Final Order No.53905/2015, dated 27.11.2015 Per Mr. R.K. Singh :
Appeal has been filed by Revenue against Order-in-Appeal dated 17.12.2008 which set aside the Order-in-Original dated 25.06.2008 in terms of which service the demand of Rs.7,26,955/- along with interest and penalty was confirmed under Goods Transport Agency (GTA) service. The Commissioner (Appeals) essentially held that (i) the service rendered by the respondent did not qualify to be GTA service as there was no evidence on record to establish that the respondent had been receiving service transport of goods by road service and was being issued consignment notes. (ii) Further the service was rendered by individual truck owners which would not qualify to be called commercial concern.
2. Ld. Departmental Representative contended that (i) there is no evidence to prove that the trucks engaged in rendering GTA service were actually owner driven trucks (ii) the service rendered clearly fell under the category of GTA service. (iii) Individual truck owners can be called commercial concerns.
3. We have considered the contention of Revenue and perused the records. Even if Revenues contention that individual truck owners can be treated to be commercial concerns is considered favourably, we find that GTA service is the service provided to the customer by goods transport agency in relation to transport of goods by road in a carriage as per Section 65 (105) (zzp) of the Finance Act, 1994. As per Section 65 (50b) ibid Goods Transport Agency means any commercial concern which provides services in relation to transport of goods by road and issues consignment note by whatever name called. The Commissioner (Appeals) has clearly come to a finding that there is no evidence on record to establish that any consignment notes were issued in respect of transport of goods in this case and therefore the service providers do not fall in the category of GTA as they did not issue any consignment notes by whatever name called. Revenue has not been able to demonstrate that the concerned service providers were even required to issue any consignment note and therefore there is no evidence that non-issuance of consignment note in this case was in contravention of any provision of law. In the case of Nandganj Sihori Sugar Co. Vs. CCE, Lucknow [2014 (34) STR 850 (Tri Del)] CESTAT held that the transportation of sugarcane by individual truck owners from cane collection Centre to assessees sugar mill without issuance of consignment note, GR, billties, etc. would not be covered under the scope of GTA service .
4. In light of the foregoing we do not find any infirmity in the impugned order. Therefore the appeal is dismissed.
(Justice G. Raghuram) President (R.K. Singh) Member (Technical) SSK -2-