C.C.E. Vs. B.K. CEMENT PIPE MANUFACTURING CO.
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
B.K. Cement Pipe Manufacturing Co.
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R.K. Singh, Member (T) -
(1.)REVENUE has filed this Appeal against Order -in -Appeal No. 16 -ST/LKO/2008, dated 30.01.2009 which set aside the Order -in -Original dated 29.04.2008 in terms of which service tax demands of Rs. 896/ - and Rs. 96,197/ - were confirmed along with interest and penalties. The period involved in this case is 01.01.2055 to 31.03.2007. The primary adjudicating authority confirmed the said demand under GTA service. The respondents contended that (i) they supplied goods in their own truck as well as in a truck which they had taken on rent at the rate of Rs. 400/ - per day and the expenses on fuel, etc. were borne by them (ii) they issued no consignment notes and (iii) transport of their goods in their own truck or in the truck taken on hire by them would not fall under the category of GTA service. The Commissioner (Appeals) agreed with the contentions of the respondents and dropped the demands. Commissioner (Appeals) also observed inter alia that the original Show Cause Notice did not invoke Rule 7C of Service Tax Rules, 1994 for imposition of late fee and that was added vide corrigendum dated 09.04.2008, which was issued after personal hearing which was held on 18.03.2008 and that such corrigendum/addendum cannot be issued after the personal hearing of the Noticee.
(2.)IN their appeal Revenue has contended that while transporting the goods, the respondents were issuing challans containing the details of consignment note and therefore they were covered under the category of GTA service and that the judgement of Kesoram Spun Pipes & Foundries Vs. CCE, Calcutta -IV [ : 2006 (3) STR 57 (Tri. -Kolkatta)] referred to by the Commissioner (Appeals) is not applicable as the definition of GTA was amended with effect from 01.05.2006 as a result of which, the word commercial concern were replaced by the word person.
In their cross objections, respondents essentially repeated the contentions they had submitted before the Commissioner (Appeals).
(3.)WE have considered the contentions of both sides. It is not in dispute that in the present case the goods were transported by the respondents in their own truck and in another truck, which was taken on hire by them on per day basis and for which the fuel and other expenses were borne by the respondents. Thus it is evident that they were transporting their own goods and were not engaging any goods transport agency. Revenue has contended that the respondent issued challans which contained essential details as contained in consignment notes. In this regard attention is to be drawn to Rule 4B of Service Tax Rules, 1994, which as per Explanation appended thereto defined consignment note to mean a document issued by a goods transport agency against the receipt of goods for the purpose of transport of goods in a goods carriage, which is serially numbered and contains the name of the consignor and consignee, registration number of the goods carriage in which the goods are transported, details of goods transported, details of the place of origin and destination, person liable for paying service tax whether consignor, consignee or the goods transport agency.
In the present case, it is evident that the respondents did not receive the goods from any person as the goods transported were their own goods. Further Goods Transport Agency as per definition in Section 50B of Finance Act, 1994 means any person who (prior to 01.05.2006 commercial concern which) provides service in relation to transport of goods by road and issues consignment notes by whatever name called. In the present case, the respondents were transporting their own goods and it can be nobodys case that even providing service to oneself is taxable. CESTAT in the case of Kesoram Spun Pipes & Foundries (supra) observed that in the present case, the appellants have received goods directly from the suppliers of the Coke, who have themselves undertaken the deliveries of the goods at the appellants door -steps, it cannot be said that the appellants received the services of any commercial agency. This ratio remains unaffected even if the words commercial concern are replaced by word person.
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