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CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL, MADRAS
Vice President, MS. JYOTI BALASUNDARAM
Shanti Fortune (India) (P.) Ltd. -Appellant
Versus
Commissioner of Central Excise (ST), Coimbatore -Respondent
FINAL ORDER NO. 1760 OF 2009 APPEAL NO. S/55 OF 2008, S/55 of 2008
Decided On : 13-11-2009
1. Heard both sides on the appeal against the demand of service tax together with interest and imposition of penalty. The demand has been confirmed against the appellants on the ground that they were liable to service tax on taxable service received from Goods Transport Agency.
2. I find that the show-cause notice proposed recovery of tax on the ground that the assessee, recipient of services, were not liable to claim abatement in terms of Notification No. 32/2004-ST, dated 3-12-2004 while the adjudication order confirms the demand on a different ground namely that the abatement is available only if conditions set out in Board’s circular are satisfied which the assessee did not satisfy. Therefore, the demand cannot be sustained for the reason that it stands confirmed on a ground not raised in the SCN. However, without concluding the matter on this ground, I proceed to go into the point on merits raised by the assessee namely that the service is not taxable service as it was not provided by the ‘Goods Transport Agency’ but by ‘Goods Transport Operator’ namely an individual either owning or operating a truck. This plea has been taken throughout the proceedings, at the initial stage as well as at the appellate stage and also before the Tribunal and does not stand controverted. Therefore, the appellants’ submission that the service they received was from ‘Goods Transport Operator’ is acceptable. This being so, the decision of the Tribunal in CCE & C v. Kanaka Durga Agro Oil Products (P.) Ltd. [Final Order Nos. 527 & 528 (Bang.) of 2008, dated 12-3-2009] holding that there is no liability on a recipient of service in cases of transportation undertaken by the individual truck operators and not by Goods Transport Agencies, to pay service tax, is squarely attracted. Following the ratio of the above decision, and for the reason set out earlier namely that the demand confirmation is on a ground not raised in the SCN issued to the appellants, I set aside the impugned order and allow the appeal.
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