AI Structured Summary
Not yet generated for this judgment
Judgment
Heard the learned Departmental Representative for the respondent and gone through the record.
The appellant and /or his Counsel are absent on call.
This appeal was earlier dismissed for non appearance. Thereafter, the appellant have filed restoration application being Service Tax RoA No.
50440 of 2019-SM on 20.05.2019. It is stated in the application for restoration that the Counsel / C.A. could not appear due to ill health on 06.12.2018.
It is further prayed that there being no deliberate intention for non-appearance, the appeal may be restored in the interest of justice. It is also prayed
that the appeal be restored to its original number. As the appeal involves a very small point of law, the appeal is resorted and taken up for final hearing
with the assistance of learned Departmental Representative.
Upon hearing the learned Departmental Representative and on perusal of record, I find that the demand has been raised on reverse charge basis
from the appellant, who is a manufacturer of stone, slab and marble. The demand of Rs. 67,041/- was proposed for the period January 2005 to
December, 2007 for GTA services availed by the appellant in respect of carriage of marble blocks from the mines to their factory. It has been urged
by the appellant in reply to show cause notice as well as before the Court below that they have availed the service of transport operator or owner and
not of any transport agency for inward transportation of raw material to their factory. It was further urged that transport booking agents and/or GTA
is not engaged and further no consignment note was issued. Therefore, services rendered by individual truck operator do not fall under the category of
GTA service as defined in Section 65(105).
The Adjudicating Authority observing that the appellant is the manufacturer of marble slabs and tiles for which marble blocks are required. Such
marble blocks have to be transported from the mines to the factory, which is not disputed. Further, observing that for transportation of goods, it is
necessary that the goods are accompanying with proper transportation documents viz invoice, bill, builty or a consignment note etc. Therefore, he
rejected the plea of the appellant that there was no existence of ‘goods transport agency’ and confirmed the demand.
Having considered the facts and circumstances, I find that there is no such provision in the scheme of Acts and Rules permitting assumption of
facts to be made by the Adjudicating Authority, without reference to the facts on record. In this view of the matter, I find that the basic fact and /or
the requisite for charging service tax under GTA service i.e. service being provided by ‘goods transport agency’ as defined, nor existence of
consignment note being there, the demand has been raised improperly as well as whimsically. Accordingly, the appeal is allowed and the impugned
order is set aside. The penalties imposed are also set aside.
The appeal is allowed. The appellant is entitled to consequential benefits, in accordance with law.
(Dictated and pronounced in open Court)