OIO No. 56/STC/AHD/ADC(JSN)2012-13
2
BRIEF FACTS OF THE CASE
M/s Chopra Transport Agency, situated at 27-28-29, Swastik Estate, Opp.
Transport Nagar, Narol Charrasta, Narol Ahmedabad (hereinafter referred to as “the
said Service Provider/ Chopra Transport Agency”) is registered with Service Tax
department having registration No. AEGPC2390MST001 dated 29-12-2004 under the
category of ‘Goods Transport Agency’ Service. Information passed on by Central Excise,
Ahmedabad-III indicated that the said service provider was engaged in providing
Transport of goods by road services but was not paying the Service Tax properly.
Accordingly a search was conducted at the business premises of the above said Service
Provider, in pursuance of the Search Warrant No. 15/2009-10 dated 28-07-2009 issued
by the Commissioner of Service Tax, Ahmedabad, authorizing the Deputy Commissioner,
Service Tax, Ahmedabad. During the course of search some incriminating documents as
mentioned in the Panchnama dated 28-07-2009 were withdrawn for further
investigation. The said service provider was found to be providing the services of
Transport of Goods by Road, Renting of Immovable Property service and Business
Auxiliary Service and getting Booking Commission.
2.
A statement of Shri Madan Renuklal Chopra, Proprietor of M/s. Chopra
Logistic, 27-28-29, Swastik Estate, Opp. Transport Nagar, Narol Charrasta, Narol
Ahmedabad was recorded on 28-07-2009 under Section 14 of the Central Excise Act,
1944 read with Section 83 of Finance Act, 1994, wherein he inter-alia stated that he is
the Proprietor of M/s. Chopra Logistic, 27-28-29, Swastik Estate, Opp. Transport Nagar,
Narol Charrasta, Narol Ahmedabad; that agreed with the facts narrated in the
panchnama dated 28-07-2009; that the said firm was engaged mainly in providing
services of transport of goods by road and for these activities, they had got registered
with service tax department since 2004 under the category of “Transport of goods by
road”; that the common accounts office meant for (1) Chopra Logistic (2) Chopra
Transport Agency (3) Chopra Transport Co. (4) Chopra Roadlines and their Head –Office
is at the Chopra Roadlines, Ekta Hotel, Chhatral, Ta-Kalol Dist- Gandhinagar; that the
said firm was started in the year of 2004-05; that they had collected certain amounts
towards “Rent Income” as per mentioned belowYear 2007-08
Year 2008-09
Total
3,93,996
4,25,516
8,19,512
He also deposed that they had neither obtained Service Tax Registration under the
category of “Business Auxiliary Service” nor under the category of “Renting of
Immovable Property”.
3.
The summons to Shri Madan Chopra proprietor of M/s Chopra Logistic (on
behalf of M/s. Chopra Transport Agency) was issued on dated 31.08.2009, 15.04.2010,
24.10.2011, 21.11.2011, 17.02.2012 & 24.02.2012 to give the statement and to submit
the remaining required documents to complete the inquiry and letters dated
04.01.2010, 21.01.2010 ,09.02.2010 and 08.03.2010 were issued to M/s Chopra
Transport Agency to give the statement in the form of evidence, however nobody
appeared on these date. There was a concentrated effort on the part of the service
provider to deny access to the documents required for completing this inquiry.
4.
Finally M/s Chopra Transport Agency produced the copies of the required
documents i.e. Audited Balance Sheets, Profit & Loss Accounts, Income Tax Returns and
the ST-3 Returns along with the GAR Challans for the financial year 2006-07 to 2010-11
on 28.12.2011. They also produced a summary cum work sheet of taxable value, service
tax payable and the value on which the service tax is to be paid by the third party i.e.
consignee /consignor.
OIO No. 56/STC/AHD/ADC(JSN)2012-13
4.1
3
Goods Transport Agency
GROSS AMT PAYABLE
(AS PER
BY
P/L)
PARTIES
F.Y.
RATE
OF
S.TAX
GROSS
AMT
LIABLE
FOE
S.TAX(GT
A)
ST
paid
AS
PER
ST-3
SERVIC
25% OF E TAX
GTA
payabl
e
BALA
NCE
PAYA
BLE
2006
-07
38409024
37229092
12.24
1179932 294983
36106
35169
937
2007
-08
45052065
44482691
12.36
569374 142344
17594
17593
1
2008
-09
32258719
31576762
12.36
681957 170489
18673
18670
3
2009
-10
19688072
18728544
10.3
959528 239882
24708
24710
-2
2010
-11
24486970
24339420
10.3
147550
36888
3799
3800
-1
TOT
AL
159894850
156356509
3538341
884585
100879
4.2
99942
Business Auxiliary Service
F.Y.
Gross
AMT(As
per P/L)
TAXABLE
Rate of
S.Tax
SERVICE
TAX
SERVICE
SERVICE
TAX AS
TAX
PER STPAYABLE
3
2006-07
1700
1700
12.24
208
0
208
2007-08
2590
2590
12.36
320
0
320
2008-09
0
0
12.36
0
0
0
2009-10
0
0
10.3
0
0
0
2010-11
0
0
10.3
0
0
0
TOTAL
4290
4290
528
0
528
4.3
938
Renting of Immovable Property
YEAR
GROSS
AMT (AS
PER
P&L)
Mun.
TAX
PAID
Taxable (
From 0106-2007)
2006-07
453996
0
0
2007-08
393996
0
2008-09
425516
0
Rate of
S.Tax
SERVICE
TAX
SERVICE
TAX PAID
AS PER
ST-3
SERVICE
TAX
PAYABLE
12.24
0
0
0
328330
12.36
40582
0
40582
425516
12.36
52594
0
52594
OIO No. 56/STC/AHD/ADC(JSN)2012-13
4
2009-10
441264
0
441264
10.30
45450
0
45450
2010-11
441264
0
441264
10.30
45450
0
45450
TOTAL
2156036
0
1636374
184076
0
184076
It could be seen from the work sheet so prepared and provided by the service provider
on 28-12-2011 along with the documents that the service provider has claimed the
value of Rs. 15,63,56,509/- on which the Service tax is to be paid by the other parties
(consignor/consignee) and not by M/s. Chopra Transport Agency (service provider). Shri
Madan Renuklal Chopra proprietor of M/s. Chopra logistic in his statement dated 27-022012 had stated that all such parties are Pvt Ltd./ Public Ltd. concerned & he also
produced a list of these consignor / consignee for the each of years as claimed by them
and also gave an assurance to produce the ledger & builty along with the respective GTA
invoices within one week falling which the taxable value should be taken as shown in
Balance sheets & P/L account for the period 2006-07 to 2010-11.
5.
A further summons was issued to Smt. Arti Madan Chopra Proprietor of M/s
Chopra Transport Agency to appear on 14.03.2012 to give their final statement and
submission of all copies of Consignment Note /LRs / Builties along with the copies of the
Ledger & respective GTA invoices in respect the taxable value on which Service Tax was
to be paid by the other party i.e. by consignee/ consignor for the period of 2006-07 to
2010-11 as an assurance had been given by Shri Madan R Chopra, Proprietor of M/s.
Chopra Logistics in his statement dated 27.02.2012. These documents have not been
produced . This office has, over the course of last three years, repeatedly asked for
these documents but inspite of repeated requests, these documents have been
withheld by the said Service Provider, even though, the documents were required
mandatorily to verify the payments in respect of Service Tax paid by third party as
claimed by the Service Provider. In the absence of these documents, there was no way
to verify the assertions of the Service Provider about the deductions claimed by the said
Service Provider and the Service Tax involved has to be taken as not paid/short paid.
5.1
A further summons was issued to the Service Provider to appear on 09-04-2012
to submit the supporting documents which was claimed by the Service Provider Shri
Madan R Chopra, Proprietor of M/s. Chopra Logistics (on behalf of Mrs. Arti M Chopra
proprietor of M/s. Chopra Transport Agency, Ahmedabad) in his statement dated 0904-2012 stated that since their data of all builty/LRs/ Bills were so bulky, it was not
possible to submit Xerox copy of builty/LRs/ Bills, so they submitted only ledgers copy
of all the relevant parties for verification purpose for the year 2006-07 to 2010-11 vide
their letter dated 09-04-2012. The said Service provider had always been asked to
produce the documents in original as scheduled in all summons issued to them but
despite of it he had willingly given this statement in such a manner and did not produce
the same. Due to shortage of time the physical verification of ledgers / books etc. could
not verified in respect of such customers (consignee/consignor) M/s. Nirma Ltd., SPL
Ltd., Somany Ceramic etc.
5.2
Further he admitted that they were not in a position to submit the relevant
consignment note / builty/LRs/ Bills for the said period, if there was any liability arising
in this regard, they were ready to pay the same.
5.3
On comparison of the list of the such consignee/consignor by whom the Service
Tax is to be paid, had been submitted on 28-12-2011 and the ledger copies has been
submitted vide their letter dated 09-4-2011, it was noticed that some extra parties were
shown in the list which was provided by them on 28-12-2011 and some extra parties
were dropped in the new list provided on 28-03-2012/09-04-2012 because of that value
claimed by them on which the Service Tax was to be paid by the third party comes
different in both list. On being asked to Shri Madan R Chopra in this regard, he could
not reply properly by saying that when the old list was provided to the department at
that time they had not rechecked all the list with the ledger so when at the time of
OIO No. 56/STC/AHD/ADC(JSN)2012-13
5
scrutiny with the department they found there was some very nominal typographical
error in the list submitted on 28-12-2011 with ledger hence they provided new list with
all the ledger on 28-03-2012/ 09-04-2012.
5.4
Further more, on being asked he also admitted that they had been collecting
certain amounts on account of Hamali charges in the year of 2009-10 to the tune of
Rs. 1,26,075/-, which had been reflected in the Profit & Loss Account/Balance sheet &
the same was included in the total value mentioned; that this service was classifiable
under the category of GTA Service & liable to S.Tax as the Hamali charges are shown in
invoices of GTA & collected accordingly; that the income as shown in the head of other
income in the Balance Sheets / Profit & Loss Account for the year 2009-10 of M/s
Chopra Transport Agency, which have been submitted by them on 28.12.2011 .
5.5
Further, on being confronted with the Profit & Loss Account of the firm which
had been submitted by them on 28.12.2011, pertaining to the period from 2006-07 to
2010-11, he explained that they had collected certain amount, towards the taxable
services which had been provided in the category of “Rent Income” without taking the
appropriate service tax registration, to the tune of Rs. 17,02,040/- for the year 2007-08
to 2010-11 and on which the service tax worked out to the tune of Rs. 1,92,192/ - for
the year 2007-08 to 2010-11. He was fully agreed with the Service Tax liability of Rs.
1,92,192/- for the year 2007-08 to 2010-2011 was to be paid along with applicable
interest by M/s Chopra Transport Agency.
5.6
He further stated that he had already explained in his earlier statement dated
28-07-2009 that M/s. Chopra Transport Agency , the service tax registration under the
category of “Renting of Immovable Property” had not been taken at the material time
but later on during the investigation as per the directives of service tax department , a
request had been made for the addition of two more services under the category of
“Business Auxiliary Service” and “Renting of Immovable Property” on 30-01-2012 and
amended ST-2 certificate have been issued accordingly.
5.7
He further admitted that they had been collecting certain amounts on account
of Freight Booking Commission, Munshina & Builty Charges etc which had been
reflected in the Profit & Loss Account of respective Balance Sheets of the firm; that
these services are classifiable under the category of Business Auxiliary Service as
defined under section 65(105) (zzb); that the income as shown in the head of other
income in the Balance Sheets / Profit and Loss Account for the year 2006-07 to 2010-11
of M/s Chopra Transport Agency submitted by them on 28.12.2011; that they had
collected certain amount , towards these taxable services have been provided by their
firm which were falling in the category of “Business Auxiliary Service”, without taking
the appropriate service tax registration in the category of Business Auxiliary Services, to
the tune of Rs. 1,37,073/- for the year of 2006-07 to 2010-2011 on which the service
tax was to be recoverable/ payable comes to Rs. 14,335/-. He was fully agreed with the
Service Tax liability of Rs. 14,335/- for the year 2006-07 to 2010-2011 is to be paid along
with applicable interest by M/s Chopra Transport Agency.
6.
M/s. Chopra Transport Agency, Ahmedabad could not submit the evidence of
Service Tax liability paid by the third party i.e. Consignee/Consignor. Hence, in respect of
“Goods Transport Services”, Service Tax liability is paid by the third party i.e.
Consignee/Consignor which was claimed by the service provider was not considerable.
Therefore, on the basis of documents i.e. Balance Sheet, ST-3 Returns and Income Tax
Returns provided by the said service provider, a worksheet is prepared, showing the
bifurcations of taxable value as per ST-3 Returns and Service Tax paid their upon,
Taxable value as claimed by GTA under notification No. 35/2004 on which Service tax is
to be paid by consignee/consignor and the value on which Service Tax is to be paid by
the GTA etc. The details of same are mentioned herein below in table B-1, B-2 and B-3,
in respect of GTA services.
OIO No. 56/STC/AHD/ADC(JSN)2012-13
6.1
6
Table - B Shown differential value and ST liability shown in ST-3 Returns
F.Y.
Value as
per ST-3
Return
ST paid
1
2
3
2006-07
117993
2
35111
2007-08
569374
2008-09
Taxable
Value after
ST
Differen
deduction of Payabl tial ST
75%
e
Payable
abetment
4
5
6
294983
36106
995
17594
142344
17594
0
681957
18671
170489
18671
0
2009-10
959528
24708
239882
24708
0
2010-11
147550
3799
36888
3799
0
Total
353834
1
99883
884585
10087
8
995
6.2 TABLE - B-2
Details Shown differential Income shown in Balance Sheet and value
after deduction of ST is to be paid by consignee/consignor
F.Y.
Income as
per P&L
A/c
Value
shown in
ST-3
Returns
Differenti
al Value
as per
Balance
Sheet
Income
(2-3)
Value on
which ST
Paid by
consignor
/consignee
as claimed
by S.P.
Differe
ntial
Taxabl
e Value
on
which
ST is to
be paid
by SP
(4-5)
Net
Taxable
Value
after
abetme
nt of
75% (as
per 6)
ST
Payabl
e (as
per -7)
Remark
s
1
2
3
4
5
6
7
8
9
200607
38450783
1179932
37270851
37247149
23702
5926
725
Add
41759
excess
paymen
t
200708
45053002
569374
44483628
44462691
20937
5234
647
Add 937
excess
paymen
t
200809
32258719
681957
31576762
31568141
8621
2155
266
200910
19688072
959528
18728544
18727698
846
212
22
201011
24486970
147550
24339420
24242687
96733
24183
2491
OIO No. 56/STC/AHD/ADC(JSN)2012-13
Total
159937546
3538341
15639920
5
7
156248366
15083
9
37710
4151
6.3 TABLE - B -3
Details of Service Tax liability is to be paid by
consignee/consignor as claimed by SP
F.Y.
Value on which ST is to
be Paid by
consignor/consignee
as claimed by SP
Taxable
Value
after
abetmen
t of 75%
ST PAYABLE
1
2
3
4
200607
37247149
9311787
1139763
200708
44462691
1111567
3
1373897
200809
31568141
7892035
975456
200910
18727698
4681925
482238
201011
24242687
6060672
624249
Total
156248366
3906209
2
4595603
6.4
The service provider has shown income in ST-3 of Rs. 35,38,341/- after
abatement of 75% the taxable value is Rs. 8,84,585/- on which Service Tax liability
comes to Rs. 1,00,878/- out of which the service provider has paid Service Tax Rs.
99,883/- and remaining amount of Rs. 995/- is to be recovered from the Service
Provider as mentioned in Table- B-1 hereinabove.
6.5
As the total income of freight receipt as per the Balance sheet and P&L Account
is Rs.15,99,37,546/ out of which Rs. 38,38,341/- had already been shown in ST-3 Returns
and accordingly paid Service Tax on which to the tune of Rs.99,883/- at the material
time (Table –B-1). The Service Provider has claimed of Rs.15,62,48,366/- on which
service tax liability was to be paid by the Consignee/consignor as mentioned
hereinabove in table - B-3 (col. 2), after abatement of 75% the taxable value was
Rs.3,90,62,092/- on which service tax liability came to Rs.45,95,603/- was to be
recovered from the service provider. The remaining taxable value after deducting of the
value shown in ST-3 Returns and value claimed by the Service provider under
notification no. 35/2004, is Rs.1,50,839/- and after abatement of 75% , the taxable value
came to Rs.37,710/- on which Service tax liability of Rs.4,151/- had to paid by the
Service Provider as mentioned hereinabove table B-2.
6.6 The Service Tax liability of M/s. Chopra Transport Agency, Ahmedabad, in respect
of GTA services (worked out on the basis of Table B-1, B-2 and B-3), Renting of
immoveable property and Business auxiliary services for the period from 2006-07 to
2010-11 is worked out as shown in Annexure B,C & D . According to the said details, M/s
Chopra Transport Agency, Ahmedabad had collected a total Rs.15,99,37,546/- freight
charges during the period from 01.04.2006 to 31.03.2011. After allowing 75%
OIO No. 56/STC/AHD/ADC(JSN)2012-13
8
abatement of this Gross taxable value the net taxable value for the said period comes to
Rs.3,99,84,387/- on which service tax amounting to Rs. Rs.47,00,632/- was required to
be received out of which the service provider had paid Rs.99,883/- in the category of
GTA during 2006-07 to 2010-11 and remaining amount or Rs.46,00,749/- was to be paid
by the service provider. [ Annexure –B ] was required to be recovered. In respect of
Renting of Immovable Property Services, they had received total taxable income of
Rs.21,56,036/- out of which an income of Rs.4,53,996/- received prior to introduction of
service tax on Rent Income was deducted leaving balance of Rs.17,02,040/- on which
service tax amounting to Rs.1,92,192/- [ Annexure C ] was required to be recovered,
and in respect of Business Auxiliary Service, the said Service Provider had collected an
amount of Rs.1,37,073/- on which service tax of Rs.14,335/- [Annexure –D] was
required to be recovered from the said service provider. The total service tax on the
aforesaid three taxable service was worked out to Rs.48,07,276/-.
7.
GTA service was introduced w.e.f. 01.01.2005 vide Notification Nos. 33/2004-S.T,
34/2004-S.T, 35/2004-S.T., dated 03.12.2004. The definition and scope of service is as
follows
"Goods" has the meaning assigned to it in clause (7) of section 2 of the Sale of Goods
Act, 1930 (3 of 1930).(Section 65(50) of Finance Act, 1994 as amended)
“Goods carriage” has the meaning assigned to it in clause (14) of section 2 of the Motor
Vehicles Act, 1988 (59 of 1988).
(Section 65(50a) of Finance Act, 1994 as amended)
“Goods transport agency” means any person who provides service in relation to
transport of goods by road and issues consignment note, by whatever name called.
(Section 65(50b) of Finance Act, 1994 as amended)
“Taxable Service” means any service provided or to be provided to any person, by a
goods transport agency, in relation to transport of goods by road in a goods carriage.
(Section 65 (105) (zzp) of Finance Act, 1994 as amended)
7.1. The CBEC vide Letter F. No. 341/18/2004-TRU (Pt.), dated 17-12-2004 has
clarified that vide Finance (No. 2) Act, 2004, a sub-clause (zzp) was inserted in clause 105
of section 65 of the Finance Act, 1994, defining taxable service as any service provided
to a customer, by a goods transport agency, in relation to transport of goods by road in a
goods carriage.
7.2. The definitions of “goods carriage” and “goods transport agency” were also
provided by inserting clause 50a and 50b in the Finance Act, 1994 as follows :
(50a) “goods carriage” has the meaning assigned to it in clause (14) of section 2
of the Motor Vehicles Act, 1988; and
(50b) “goods transport agency” means any commercial concern which provides
service in relation to transport of goods by road and issues consignment note,
by whatever name called.
7.3
Notification No.:32/2004-Service Tax, dated 3rd December, 2004 exempts
Service Tax on seventy-five per cent of the gross amount charged in respect of taxable
service provided by a goods transport agency to a customer, provided that credit of duty
paid on inputs or capital goods used for providing such taxable Service is not taken and
benefit of Notification No. 12/2003- Service Tax, dated 20th June, 2003 is not availed of
by the goods transport agency.
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9
7.3.1
Notification No.:33/2004-Service Tax, dated 3rd December, 2004 exempts
Service Tax on taxable service provided by the goods transport agency to a customer, in
relation to transport of fruits, vegetables, eggs or milk by road in a goods carriage.
7.3.2 Notification No:34/2004-Service Tax, dated 3rd December, 2004 exempts the
taxable service provided by a goods transport agency to a customer, from the whole of
Service Tax, in such cases where, (i) the gross amount charged on consignments transported in a goods carriage
does not exceed rupees one thousand five hundred; or
(ii) the gross amount charged on an individual consignment transported in a
goods carriage does not exceed rupees seven hundred fifty.
For the purpose of this notification, “an individual consignment” would mean all goods
transported by a goods transport agency by road in a goods carriage for a consignee.
7.3.3. Notification No.:35/2004-Service Tax, dated 3rd December, 2004 prescribes
that the person making payment towards freight would be liable to pay the service tax,
in case the consignor or the consignee of the goods transported is one of the following,(i) Factory registered under or governed by the Factories Act;
(ii) Company established by or under the Companies Act;
(iii) Corporation established by or under any law;
(iv) Society registered under Societies Registration Act or similar law;
(v) Co-operative society established by or under any law;
(vi) Dealer of excisable goods, registered under the Central Excise Law; or
(vii) Any body corporate established, or a partnership firm registered, by or under
any law.
7.4. With regard to the GTA service and tax liability there on, CBEC in their letter F. No.
341/18/2004-TRU (Pt.), dated 17-12-2004], with regard to Issues pertaining to levy of
Service tax on goods transport agency clarified as under.
In the Budget 2004, it was proposed to levy service tax on services provided by a
goods transport agency in relation to transport of goods by road.
2. For this purpose vide Finance (No. 2) Act, 2004, a sub-clause (zzp) was inserted in
clause 105 of section 65 of the Finance Act, 1994, defining taxable service as any
service provided to a customer, by a goods transport agency, in relation to transport
of goods by road in a goods carriage.
2.1 The definitions of “goods carriage” and “goods transport agency” were also
provided by inserting clause 50a and 50b in the Finance Act, 1994 as follows:
(50a) “goods carriage” has the meaning assigned to it in clause (14) of section 2
of the Motor Vehicles Act, 1988; and
(50b) “goods transport agency” means any commercial concern which provides
service in relation to transport of goods by road and issues consignment note,
by whatever name called.
3. In pursuance to an agreement dated 27th August, 2004 between the Government
and representatives of the transport industry, a Committee was set up to look into
appropriate mechanism/modalities for collection and payment of service tax. It was
instructed vide letter issued from F. No.B2/8/2004-TRU dated 10-9-2004 [2004
(171) E.L.T. T17] that no tax would be payable by the goods transport agency till
such time the Government comes out with the relevant rules/notifications
prescribing the modalities for levy and collection (refer para 26 of the letter).
OIO No. 56/STC/AHD/ADC(JSN)2012-13
10
4. The Committee has submitted its report on 27th October, 2004. Taking into
account the recommendations of the Committee, Notification Nos. 32 to 35/2004Service Tax all dated 3rd December, 2004 have been issued prescribing the
modalities for levy and collection of service tax in respect of transport of goods by
road. These notifications would be effective from 1st January, 2005.
4.1 Notification No. 32/2004-Service Tax, dated 3rd December, 2004 exempts
service tax on seventy-five per cent of the gross amount charged in respect of
taxable service provided by a goods transport agency to a customer, provided that
credit of duty paid on inputs or capital goods used for providing such taxable service
is not taken and benefit of Notification No. 12/2003-Service Tax, dated 20th June,
2003 is not availed of by the goods transport agency.
4.2 Notification No. 33/2004-Service Tax, dated 3rd December, 2004 exempts
service tax on taxable service provided by the goods transport agency to a customer,
in relation to transport of fruits, vegetables, eggs or milk by road in a goods
carriage.
4.3 Notification No.34/2004-Service Tax, dated 3rd December, 2004 exempts the
taxable service provided by a goods transport agency to a customer, from the
whole of service tax, in such cases where, (i)
the gross amount charged on consignments transported in a goods carriage
does not exceed rupees one thousand five hundred; or
(ii) the gross amount charged on an individual consignment transported in a
goods carriage does not exceed rupees seven hundred fifty.
For the purpose of this notification, “an individual consignment” would mean all
goods transported by a goods transport agency by road in a goods carriage for a
consignee.
4.4 Notification No. 35/2004-Service Tax, dated 3rd December, 2004 prescribes that
the person making payment towards freight would be liable to pay the service tax,
in case the consignor or the consignee of the goods transported is one of the
following,(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Factory registered under or governed by the Factories Act;
Company established by or under the Companies Act;
Corporation established by or under any law;
Society registered under Societies Registration Act or similar law;
Co-operative society established by or under any law;
Dealer of excisable goods, registered under the Central Excise Law; or
Any body corporate established, or a partnership firm registered, by or under
any law.
4.5 In cases other than those mentioned in para 4.4 above, the service tax is to be
paid by the Goods Transport Agency. The Goods Transport Agencies are required to
issue a consignment note (even in cases covered under para 4.4) other than in cases
where the service in relation to transport of goods by road is wholly exempted from
service tax. The consignment note should be serially numbered and should contain
the names of the consignor and consignee, registration number of the goods
carriage used for transport of goods, details of goods transported, place of origin
and destination and person liable for paying service tax.
5. To ensure smooth implementation of the levy on the goods transport agency
following instructions are issued:
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5.1According to provisions of Section 69 of the Finance Act, 1994, requirement of
registration is limited to persons liable to pay service tax. Thus those goods
transport agencies, which are not liable to pay any service tax, are not required to
be registered under the service tax rules.
5.2 Permission to goods transport agency for centralized registration under Rule
4(3A) of Service Tax Rules, 1994, should not be denied unless there is a substantial
reason to believe that it would lead to evasion of service tax. In case of centralized
registration, all verification or audit checks should be carried out through registered
office only.
5.3 No vehicle should be stopped en route for verification of service tax compliance
unless there is specific information/intelligence about deliberate evasion of service
tax. Such verification, if carried out, should be under explicit authorization, on caseto-case basis, from an officer not below the rank of a Commissioner. In such cases,
the vehicle and the goods should be released immediately after obtaining
photocopy of transport documents. Any further verification relating to service tax
provisions should be made with the office registered with the Department.
5.4 In case the central office of a transport company is registered with the
department for payment of service tax, no independent enquiries, verification or
audit checks should be carried out of the subordinate offices of such goods
transport agency, unless it is based on information/intelligence about deliberate
evasion, and such checks/verification is authorized by an officer not below the rank
of a Commissioner. All queries, notices or scrutiny of records, if required, should
only be made through the registered office by the departmental offices having
jurisdiction over such central office. The registered offices, would however, be
subjected to audit checks as per the guidelines of the government.
5.5
Records pertaining to the period prior to imposition of service tax levy on
the goods transport should not be called for verification unless the same are in
connection with cases booked for violation of the provisions of customs or central
excise laws against customers of the transporters.
5.6
In case of omission in payment of service tax or procedural lapses by
persons liable to pay service tax on the goods transport by road, committed before
31st December, 2005, the consequences should be limited to recovery of tax with
interest payable thereon. No penalty should be imposed on such defaulters unless
the default is on account of deliberate fraud, collusion, suppression of facts or
willful mis-statement or contraventions of the provisions of service tax with intent
to evade payment of service tax.
5.7
If service tax due on transportation of a consignment has been paid or is
payable by a person liable to pay service tax, service tax should not be charged for
the same amount from any other person, to avoid double taxation.
8.
In this instant case the said service provider/GTA had not submitted any of
documents i.e. Consignment Note/Bills/ Invoices etc., on the basis of which it could be
established that the GTA has issued the documents as required under above mentioned
Rule 4A (1) & 4B (1) and Board’s Circular F. No. 341/18/2004-TRU ( pt.) dated
17.12.2004. On being called for the same repeatedly, the GTA had only submitted the
copies of ledgers of various their customers viz. M/s Nirma Ltd., Glukas Pharma Pvt Ltd.,
SPL Ltd., Oracle Granito Ltd., TODOR India Ltd. etc., evidencing that they had received
payment towards freight from such parties who had to pay service tax on the freight
amount. They may be consignee or consignor of the goods. As Shri Madan R. Chopra (on
behalf of Smt. Arti Chopra Proprietor of M/s. Chopra Transport Agency) in his statement
dated 09.04.2012 had inter alia stated that they were not in a position to submit the
copies of the Consignment/bills/challan etc., evidencing who was the person liable to
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pay service tax in terms of Rule 2(1)(d)(v) of the Service Tax Rules, 1994. Therefore in
view of clarification given in para 4.5 of the aforesaid circular the Goods Transport
Agency is the person liable to pay service tax.
9.
All the above Acts/Rules of contravention as discussed above, on the part of M/s
Chopra Transport Agency, appeared to have been committed by suppression of the
facts and contravention of the aforesaid provisions with an intent to evade payment of
service tax in as much as M/s Chopra Transport Agency had not paid appropriate service
tax on GTA services. Based on the above, it appeared that the activities under taken by
the said service provider squarely fell within the ambit of the taxable service as defined
above and it contained all essential ingredients of the said taxable service. As the GTA
failed to produce relevant Consignment Notes/bills/ challan etc. as prescribed under
Rule 4A(1) & 4B(1) M/s Chopra Transport Agency, providing GTA service was liable to
pay service tax. Accordingly, Service Tax liability was worked out on the balance sheet
income by denying the benefit under the said notification and as per the above table
total service tax was payable Rs.47,00,632/-The service provider had paid Rs.99,883/- in
the category of GTA during 2006-07 to 2010-11 and remaining amount or
Rs.46,00,749/- was to be paid by the service provider.
10.
Renting of Immoveable property was introduced w.e.f 01.06.2007 vide
Notification No. 23/2007-S.T., dated 22.05.2007 was inserted as clause (90a)in section
65 of the Finance Act,1994 which is as under.
[(90a) “renting of immovable property” includes renting, letting, leasing, licensing or
other similar arrangements of immovable property for use in the course or furtherance
of business or commerce but does not include —
(i)
renting of immovable property by a religious body or to a religious
body; or
(ii) renting of immovable property to an educational body, imparting
skill or knowledge or lessons on any subject or field, other than a
commercial training or coaching centre.
Explanation [1]. — For the purposes of this clause, “for use in the course or
furtherance of business or commerce” includes use of immovable property as factories,
office buildings, warehouses, theatres, exhibition halls and multiple-use buildings;]
[Explanation 2. — For the removal of doubts, it is hereby declared that for the
purposes of this clause “renting of immovable property” includes allowing or permitting
the use of space in an immovable property, irrespective of the transfer of possession or
control of the said immovable property;]
The said service was made taxable under section 65(105)(zzzz) of the Finance Act,1994
11.
The Service Provider had collected certain amount towards “Rent Income” and
details thereof are mentioned as per Annexure- C. It appeared that these activities under
taken by the said Service Provider squarely fell within the ambit of the taxable service as
defined above and it contained all essential ingredients of the said taxable service. From
“Renting of Immovable Property Service” the amount realized was Rs.21,56,036/- and the
service provider received Rs.4,53,996/- prior to 01-06-2007 (date of introduction of the
service was on 01-06-2007) and net taxable value of the said service was Rs.17,02,040/-.
The Service tax leviable thereon worked out to be Rs.1,92,192/- (including Education Cess
and HSE Cess) during the period from 01.06.2007 to 31.03.2011.
12. Business Auxiliary Service was introduced w.e.f 01.7.2003 .
As per the provisions of Section 65 (19) of the Finance Act, 1994 the term
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“Business Auxiliary Service” has been defined as “Business auxiliary service
means any service in relation to,(i)
or
(ii)
(iii)
promotion or marketing or sale of goods produced or provided by
belonging to the client; or
promotion or marketing of service provided by the client; or
any customer care service provided on behalf of the client; or
(iv)
“
Procurement of goods or services, which are inputs for the client; or
Explanation:- For the removal of doubts, it is declared that for the purpose of this
sub-clause, “ inputs” means all goods or services intended for use by the client.
(v)
or
(vi)
Production or processing of goods for, or on behalf of, the client;
Provision of service on behalf of the client; or
(vii) a service incidental or auxiliary to any activity specified in subclauses (i) to (vi), such as billing, issue or collection or recovery of cheques,
payments. Maintenance of accounts and remittance, inventory
management, evaluation or development of prospective customer or
vendor, public relation services, management or supervision,
And includes services as a commission agent, but does not include any
information, technology service and any activity that amounts to
“manufacture” within the meaning of clause (f) of section 2 of the Central
Excise Act, 1944”
The said service is made taxable vide Section 65(105) (zzb) of the Finance Act, 1994.
13 The Service Provider is showing income in respect of Freight Booking Income,
Munshina , Hamali charges and Builty Charges. It appeared that these activities under
taken by the said service provider squarely fell within the ambit of the taxable service as
defined above and it contained all essential ingredients of the said taxable service For
Business Auxiliary Service, Service provider had realized Rs.1,37,073/- during the period
from 01.04.2006 to 31.03.2011 and Service Tax leviable there on was worked out to be
Rs.14,335/- Service Tax (including Education Cess and HSECess).
14.
From the above, it appeared that the above said firm was engaged in the
business of providing the taxable service i.e. (1) Goods Transport Service (2) Renting of
Immovable Property (3) Business Auxiliary Service, and was liable to pay the Service Tax
on the total taxable amount of consideration charged and received by them. Further, it
appeared that the said firm had not properly deposited the service tax in respect of
Goods Transport Service by Road. And also the service provider had provided the
taxable services i.e. (1) Business Auxiliary Service and (2) Renting of Immovable Property
Service without taking Service Tax registration and not paying appropriate Service Tax
payable under the said categories.
15.
All the above facts of the part of the said service provider appeared to have been
committed by way of suppression of facts with intent to evade payment of Service Tax.
The said service Provider had deliberately ignored to honour number of summons
issued to him/her and had deliberately with hold providing of crucial documents which
are required for investigation for quantification of Service Tax liability, deliberately not
got Registration under the category of Business Auxiliary Service and Renting of
immovable Property Service and not paid Service Tax on the aforesaid Services was
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required to be demanded and recovered from them under the proviso to Section 73(1)
of the Finance Act, 1994 by invoking extended period of five years. All these acts of
contravention of the provisions of Section 66, 68, 70, 73A and 83 of the Finance Act,
1994 read with Rules 4, 5, 6 and 7 of the Service Tax Rules, 1994 appeared to be
punishable under the provisions of Section 76, 77 of the Finance Act, 1994. Moreover, in
addition to the contravention, omission and commissions on the part of the said Service
Provider as stated in the foregoing paras, it appeared that, they have willfully
suppressed the facts, nature and value of service provided by them with an intent to
evade the payment of Service Tax, rendering themselves liable for penalty under Section
78 of the Finance Act, 1994.
16.
Thus, it appeared that the said M/s. Chopra Transport Agency, Ahmedabad had
contravened the provisions of:
(a)
Section 68 of the Finance Act, 1994 read with Rule 6 of the Service Tax Rules,
1994, in as much as that they had failed to make payment of Service Tax total
amounting to Rs. 48,07,276/- ( Rupees Forty Eight lakh Seven thousand Two
hundred Seventy Six only) (including Ed. Cess and HSEC) as mentioned in the
foregoing paras for the period from 01.04-2006 to 31-03-2011 within the
statutory time limit prescribed;
(b)
Contravened the provision of section 70 of the Finance Act,1994 read with
rule 7 of the Service Tax Rules,1994in as much as they failed to declared
various services rendered by them and to correct taxable value in their ST-3
returns filed from time to time;
(c)
Contravened the provision of rule 4(5A) of Service Tax Rules,1994 in as much
as they failed to incorporate details of additional services in their Service Tax
registration issued under section 69 of the Finance Act,1994; and
(d)
Section 83 of Finance Act, 1994 read with Section 14 of Central Excise, Act,
1944 as much as they failed to furnish the desired information /submission of
documents.
17. Now, therefore the said M/s. Chopra Transport Agency, 27-28-29, Swastik Estate,
Opp. Transport Nagar, Narol Charrasta, Narol Ahmedabad was issued a show cause
notice no. STC/04-06/O&A/ADC/Prev/R-IX/D-II/12-13 dated 23.04.2012, attached with
the said Annexures A, B, C & D, as discussed in the foregoing paras, by the Additional
Commissioner, Service Tax, Ahmedabad as to why;
(i)
Services rendered/provided by them as discussed in para 8 & 9 of the
said SCN should not be considered as taxable service under the category
of Goods Transport Agency Service as defined under Section 65 of the
Finance Act, 1994, as amended, and M/s Chopra Transport Agency
should not be considered as the person liable to pay service tax as per
rule 2(1)(d)(v) of Service Tax Rules, 1994 and the amount of taxable
value of Rs.3,99,84,387/- received as payment/recovered by them from
their clients should not be considered as taxable value under Section 67
of the Finance Act 1994 and Service Tax amounting to Rs. 47,00,632/- (
Rupees Forty Seven lakh Six Hundred Thirty Two only) (including Ed. Cess
and HSEC) as the Service Provider had already paid Rs.99,883/- (Rupees
Ninety Nine thousand Eight Hundred Eighty Three only) is to be
appropriated. Thus, total Service Tax liability of Rs.46,00,749/- (Rupees
Forty Six lakh and Seven Hundred Forty Nine only) (including Ed. Cess and
HSEC) for the period from 01-04-2006 to 31-03-2011 should not be
demanded and recovered from them under proviso to Section 73(1) of
the Finance Act, 1994, invoking the larger period of five years;
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(ii)
Services rendered/provided by them as discussed as discussed in para 10
& 11 of said SCN should not be considered as taxable service under the
category of ‘Business Auxiliary Service’ as defined under Section 65 of
the Finance Act, 1994, as amended, and the amount of taxable value of
Rs.1,37,073/- (Rupees One lakh Thirty Seven thousand Seventy Three
only) received as payment/ recovered by them from their clients should
not be considered as taxable value under Section 67 of the Finance Act
1994 and Service Tax amounting to Rs.14,335/- (Rupees Fourteen
thousand Three Hundred Thirty Five only) (including Ed. Cess and HSEC)
for the period from 01-04-2006 to 31-03-2011 should not be demanded
and recovered from them under proviso to Section 73(1) of the Finance
Act, 1994, invoking the larger period of five years;
(iii)
Services rendered/provided by them as discussed in para 12 of the said
SCN should not be considered as taxable service under the category of
‘Renting of Immovable Property Service’ as defined under Section 65 of
the Finance Act, 1994, as amended, and the amount of taxable value of
Rs. 17,02,040/- (Rupees Seventeen lakh Two thousand Forty only)
received as payment/ recovered by them from their clients should not be
considered as taxable value under Section 67 of the Finance Act 1994 and
Service Tax amounting to Rs. 1,92,192/- (Rupees One lakh Ninety Two
thousand One Hundred Ninety Two only) (including Ed. Cess and HSEC)
for the period from 01-06-2007 to 31.03.2011 should not be demanded
and recovered from them under proviso to Section 73(1) of the Finance
Act, 1994, invoking the larger period of five years;
(iv)
Interest as applicable on the amount of Service Tax liability of Rs.
48,07,276/- (Rupees Forty Lacs Seven Thousand Two Hundred Seventy
Six only) should not be recovered from them for the delay in making the
payment under Section 75 of the Finance Act, 1994;
(v)
Penalty should not be imposed upon them under the Section 76 of the
Finance Act, 1994 for non payment of Service tax;
(vi)
Penalty should not be imposed upon them under various sub section of
Section 77 (1) and (2) of the Finance Act, 1994 for the failure to file
prescribed Service Tax return within the stipulated time, failure to
furnished the records and for the failure to take Service Tax Registration
under the category of (1) Business Auxiliary Service and (2) Renting of
Immovable Property Service within the stipulated time; (3) failure to
furnish required information as called for by the Central Excise Officer,
and (4) failed to remained present before Central Excise officer who had
issued summons on various dates; and
(vii)
Penalty should not be imposed upon them under Section 78 of the
Finance Act, 1994 for willful suppression and not disclosing the value of
the taxable service provided by them before the department with intent
to evade payment of service tax as mentioned above.
DEFENCE REPLY AND PERSONAL HEARING
18.
I find from the records that the said service provider has not submitted any
defence reply. However, they have submitted a letter dated 18.07.2012 enclosing 9
challans evidencing payments by them under “Business Auxiliary Services” as under :
Sr.No.
Period
Amount (Rs.)
Challan date
1
Oct-Dec 2006-07
24
05.07.2012
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2
Jan-March 2006-07
1979
05.07.2012
3
April-June 2007-08
256
05.07.2012
4
July-Sep 2007-08
206
05.07.2012
5
Oct-Dec 2007-08
112
05.07.2012
6
Jan - March 2007-08
21
05.07.2012
7
April-June 2009-10
7632
05.07.2012
8
July-Sept 2009-10
7600
05.07.2012
9
Oct-Dec 2009-10
4256
05.07.2012
TOTAL
22086
Also in the said letter dated 18.07.2012, the said service provider has further submitted
that they have paid service tax along with interest as demanded in Para 13 of the Show
cause notice dated 23.04.2012.
19.
The said service provider were given various dates for personal hearing viz.
22.01.2013, 11.02.2013, 22.02.2013 & 7.03.2013. However, no one turned up and no
reply/letter was submitted either.
DISCUSSIONS AND FINDINGS
20.
I have gone through the case records and the charges made in the SCN. I find
that various notices were issued for personal hearings on 22.01.2013, 11.02.2013,
22.02.2013 & 7.03.2013, to meet out the end of natural justice in the matter but no one
appeared on or on behalf of the said service provider. I find that sufficient opportunities
have been granted to the said service provider to make further submissions, if any.
Accordingly, I take up the case for adjudication on the basis of materials and evidences
available on record.
21.
I find that three issues are to be decided in this case as under :
(i)
whether abatement of 75% was available to the said service provider as
provided under Notification No. 35/2004-ST in the category of Goods Transport
Agency (GTA).
(ii)
whether Freight Booking Income, Munshina ,Hamali charges and Builty Charges
received by the said service provider falls within the ambit of taxable service as
defined under “Business Auxiliary Service” (BAS).
(iii)
whether the amount collected towards “Rent Income” by the said service
provider falls under the category of ‘Renting of Immovable Property Service’.
22.
I find from the records that the said service provider was repeatedly asked by
the Department to furnish the details of consignment Note/LRs/Bilties along with the
copies of the Ledger & respective GTA invoices , to verify the payments of service tax by
their consignor/consignee. However, the service provider failed to provide any
documents. I find it relevant to list the events chronologically to bring out the apathy of
the said service provider on the issue, listed as under :
 A search was conducted at the business premises of the above said Service
Provider, in pursuance of the Search Warrant No. 15/2009-10 dated 28-07-2009
issued by the Commissioner of Service Tax, Ahmedabad.
 A statement of Shri Madan Renuklal Chopra, Proprietor of M/s. Chopra Logistic,
27-28-29, Swastik Estate, Opp. Transport Nagar, Narol Charrasta, Narol
Ahmedabad was recorded on 28-07-2009.
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 The summons to Shri Madan Chopra proprietor of M/s Chopra Logistic (on
behalf of M/s Chopra Transport Agency) had been issued on dated 31.08.2009,
15.04.2010, 24.10.2011, 21.11.2011, 17.02.2012 & 24.02.2012 to give the
statement and to submit the remaining required documents to complete the
inquiry and letters dated 04.01.2010, 21.01.2010 ,09.02.2010 and 08.03.2010
were issued to the said service provider to give the statement in the form of
evidence. Neither Shri Chopra nor any representative appeared on these dates.
 M/s Chopra Transport Agency produced the copies of the required documents
i.e. Audited Balance Sheets, Profit & Loss Accounts, Income Tax Returns and the
ST-3 Returns (submitted only for the year 2006-07 and 2010-11) along with the
GAR Challans for the financial year 2006-07 to 2010-11 on 28.12.2011.
 Shri Madan Renuklal Chopra proprietor of M/s. Chopra logistic in his statement
dated 27-02-2012 had stated that all such parties are Pvt Ltd./ Public Ltd.
concerned & he had also produced a list of these consignor / consignee for the
each of years as claimed by them and also gave an assurance to produce the
ledger & builty along with the respective GTA invoices within one week, falling
which the taxable value should be taken as shown in Balance sheets & P/L
account for the period 2006-07 to 2010-11.
 A further summons was issued to Smt. Arti Madan Chopra, Proprietor of M/s
Chopra Transport Agency to appear on 14.03.2012 to give their final statement
and submission of all copies of consignment Note/ LRs/Bilties along with the
copies of the Ledger & respective GTA invoices in respect of the taxable value on
which S.Tax was to be paid by the other party i.e. by consignee/ consignor for
the period of 2006-07 to 2010-11, as an assurance had been given by Shri Chopra
in his statement dated 27.02.2012. These documents were not produced by
them.
 A further summons was issued to the Service Provider to appear on 09-04-2012
to submit the supporting documents, which was claimed by Shri Madan R
Chopra, proprietor of M/s Chopra Logistics (on behalf of to Smt. Arti Madan
Chopra, Proprietor of M/s Chopra Transport Agency) in his statement dated 0904-2012 that since their data of all builty/LRs/ Bills were so bulky, it was not
possible to submit Xerox copy of builty/LRs/ Bills, so they submitted only ledger
copy of all the relevant parties for verification purpose for the year 2006-07 to
2010-11 vide their letter dated 9.04.2012 . The said Service provider had always
been asked to produce the documents in original as scheduled in all summons
issued to them but despite of it he had willingly given this statement in such a
manner and did not produce the same. Further he admitted that they were not
in a position to submit the relevant consignment note / builty/LRs/ Bills for the
said period, if there was any liability arising in this regard, they were ready to pay
the same.
22.1 On above issue , I find that in respect to the GTA service, it is the responsibility of
the service provider to provide the documents to prove that actual transportation of the
goods took place, on the basis of which the benefit of abatement as provided by
Notification No. 32/2004-ST could be claimed by them. In this connection, I refer to the
Board’s Circular F.No. B1/6/2005-TRU, dated 27-7-2005, at Para 31 , as under :
31.Goods Transport Agency
An abatement of 75% in taxable service of goods transport 31.1 by road is
available on the condition that the goods transport agency has not availed credit
on inputs and capital goods used for providing taxable service and has also not
availed benefit of notification No. 12/2003-Service Tax, dated 20-6-2003 (vide
Notification No. 32/2004-Service Tax, dated 3-12-2004). It has been requested
that in cases where liability for tax payment is on the consignor or consignee, the
procedure as to how it should be confirmed by such consignor or consignee that
the goods transport agency has not availed credit or benefit of notification No.
12/2003-Service Tax may be prescribed. In such cases it is clarified that a
declaration by the goods transport agency in the consignment note issued, to
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the effect that neither credit on inputs or capital goods used for provision of
service has been taken nor the benefit of notification No. 12/2003-Service Tax
has been taken by them may suffice for the purpose of availment of abatement
by the person liable to pay service tax.
(emphasis supplied)
22.2 The same issue was also discussed in the Hon’ble Tribunal in case of
COMMISSIONER OF CENTRAL EXCISE, KANPUR reported at 2008 (11) S.T.R. 591 (Tri. Del.). I reproduce the judgment as under :
“2. The appeal by the Revenue is directed against the order of Commissioner of
Central Excise (Appeals) setting aside the order-in-original of the Assistant
Commissioner and allowing the appeal of the respondent. The respondent is a
recipient of ‘goods transport agency’ service. The dispute relates to availment of
the benefit of abatement on the gross amount charged from the customer in
terms of Notification No. 32/2004-S.T., dated 3-12-2004. The Notification reads
as under :“In exercise of the powers conferred by sub-section (1) of section 93 of the
Finance Act, 1994 (32 of 1994), the Central Government, being satisfied that it is
necessary in public interest so to do, hereby exempts the taxable service
provided by a goods transport agency to a customer, in relation to transport of
goods by road in a goods carriage, from so much of the service tax leviable
thereon under section 66 of the said Act, as is in excess of the service tax
calculated on a value which is equivalent to twenty-five per cent of the gross
amount charged from the customer by such goods transport agency for
providing the said taxable service :
Provided that the exemption shall not apply in such cases where (i) the credit of duty paid on inputs or capital goods used for providing such
taxable service has been taken under the provisions of the Cenvat Credit Rules,
2004; or
(ii) the goods transport agency has availed the benefit under the notification of
the Government of India in the Ministry of Finance (Department of Revenue) No.
12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503(E), dated the 20th
June, 2003]”.
3. The Board (CBEC) issued circular vide letter F.No.B 1/6/2005-TRU dated 277-2005 to operationalise different notifications. In so far as the above
Notification dated 3-12-2004 is concerned, it was provided as follows :“......a declaration by the goods transport agency in the consignment note issue,
to the effect that neither credit on inputs or capital goods used for provision of
service has been taken nor the benefit of notification No. 12/2003-Service tax
has been taken by them may suffice for the purpose of availment of abatement
by the person liable to pay service tax”.
The respondent produced photocopies of the so-called declaration purportedly
by the transporters on their letterheads on behalf of the concerned transport
agency, claiming the benefit of abatement. The Assistant Commissioner found
that the declarations were photocopies and they did not tally with another set of
photocopies of similar declarations filed at the time of hearing. He concluded
that the respondent had failed to make out a case for availment of the
exemption notification. He accordingly confirmed a demand of Rs. 1,57,204/towards service tax with interest. He also imposed penalty of equal amount
under Section 76 of the Finance Act.
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4. On appeal by the respondent, the Commissioner (Appeals) noted that a
claim for abatement can be allowed provided no cenvat credit has been availed
of. He, however, also held that the respondent’s claim of non-availment of
cenvat credit is “not liable to be rejected” in view of the endorsed copies and
certificates produced “until proved otherwise”. He also observed that before
arriving at any contrary conclusion about the veracity of documents under
reference, the adjudicating authority ought to have verified the same from the
concerned transport agency or by resorting to some other alternate method
which had not been done. Having observed and held so, the Commissioner
(Appeals) instead of sending the matter back to the adjudicating authority for
verification simply set aside the order without any further consequential order.
5. After hearing the parties at length we are of the view that it would be in the
interest of justice that the varacity of the documents and the certificates
submitted by the respondent in support of its claim is verified not only by the
concerned transporters, but also by other sources. By only setting aside the
order of the Assistant Commissioner without any consequential order of
remand, learned Commissioner (Appeals) gave quietus to the controversy which
was not correct. We are not able to appreciate the use of expression “until
proved otherwise” in the context of the present case. The onus of proof for
claiming abatement is clearly on the assessee and not on the Revenue. We
have come across cases where goods were allegedly transported by scooters,
motor cycles, vans, jeeps etc. and benefit claimed. Whether actual
transportation took place by the concerned vehicles has to be proved by the
respondent and the same has to be verified - not by taking the words of the
transporters to be correct on their face value but by cross-checking from other
reliable sources and agencies.
6. In these premises, we set aside the order of the Commissioner (Appeals) and
remand the matter back to the Assistant Commissioner of Central Excise,
Division II, Kanpur for passing fresh orders in accordance with law….”
22.3 In another case of Bharathi Soap Works Vs. Commissioner of Customs & C.Ex.,
Guntur as reported at 2008(9)S.T.R. 80 (Tri-Bang), wherein the consignment notes were
not issued/found by the Transporter, the Hon’ble Tribunal observed as under ,
2.2 The Departmental representative contended before the Commissioner (A)
that the person making payment towards freight is liable to pay Service tax in
case the consignor or consignee of the goods transported falls in any of the
categories specified in Notification No. 35/2004 dated 3-12-2004. He stated that
taking of proper documents for payment of duty is the responsibility of the
assessee concern. The Commissioner (A) after due consideration gave his findings
in Para 5, which is reproduced herein below.
5. I have carefully gone through the case records and the submissions made by
the appellants, including those urged at the time of personal hearing. I find that
issue of consignment note is mandatory in the case of transportation of goods
from anywhere to anywhere. The goods are not transported free of charge. The
goods are transported to some profit. Once the freight is charged on the
transportation of goods, commercial activity takes place. Thus, it can be said that
it is a commercial concern. Therefore, I find that the adjudicating authority had
rightly demanded the service tax. I do not find any infirmity in the orders passed
by the lower adjudicating authority. Therefore, I pass the following order.
ORDER
The appeal filed by the appellant is dismissed. The order passed by the Assistant
Commissioner, Customs and Central Excise, Guntur Division, in C. No.
IV/16/6/2005-S. Tax dated 20-12-2005, is upheld.
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20
3. I have heard learned counsel and JDR in the matter.
4. The learned Counsel submitted that the small transporters are not in a habit
of issuing consignment note or bills or Challans as defined in Rule 4(B) of Service
Tax Rules and hence, they have difficulty in discharging Service tax. He prays for
remand of the matter so that he can again express the difficulties of the
appellants.
5. The learned JDR opposed the prayer and contended that issue of
consignments, note is mandatory irrespective of a transporter being
illiterate/literate or big/small. He submits that everyone is bound by law and
ignorance of law is no excuse.
6. I have carefully considered the submissions and I find that in these appeals
there is no question of any computation of the Service tax or any dispute
pertaining to amounts to be quantified or required to be paid. The appellants
only sought clarification from the Assistant Commissioner pertaining to the nonissue of consignment note by the transporters. The Assistant Commissioner
clearly clarified that it is mandatory under Rule 4(B) of Service Tax Rules for issue
of documents. The appellants are not contesting the fact that they are the
persons who are required to discharge the Service tax. They are finding difficulty
in getting the consignment note or bills or Challans as defined under Rule 4(B) of
Service Tax Rules.
6.1 On a careful consideration, I find that these appeals do not have any merit
at all. All the statutory provisions which are mandatory are required to be strictly
followed by tax payees. The administrative difficulties, illiteracy or any such
inconvenience cannot be a ground for non-following of the statutory provisions.
The transporters are bound to issue the consignment note or Bills or Challans
as defined in Rule 4(B) of Service Tax Rules or any other serially numbered bills.
Failure to do so would be a violation of law. The appellants, if they are finding
difficulty in getting the consignment bill, then they should engage only those
transporters who follow the law. I do not find any merit in these appeals and the
same are rejected.
23.
I find that the said service provider was not able to provide the consignment
notes/LRs/Bilties along with the copies of the Ledger & respective GTA invoices, despite
repeated requests and promises made by them. Also I find that Shri Madan R Chopra,
Proprietor of M/s. Chopra Logistics, on behalf of M/s Chopra Transport Agency, in his
statement dated 09-04-2012 has admitted that since their data of all builty/LRs/ Bills
were so bulky, it was not possible to submit Xerox copy of builty/LRs/ Bills, so they
have submitted only ledgers/S.Tax Registers copy of all the relevant parties for
verification purpose for the year 2006-07 to 2010-11 on 9.04.2012. Further he admitted
that they were not in a position to submit the relevant consignment note / builty/LRs/
Bills for the said period, if there was any liability arising in this regard, they were ready
to pay the same.
24.
Therefore, in view of the discussion in the foregoing para, I find that the said
service provider has failed miserably to show any proof in the form of relevant
consignment note / builty/LRs/ Bills for the said period, so as to be eligible to claim the
benefit of abatement of 75% as provided in the Notification No. 32/2004-ST. Thus, I
confirm the service tax amount short paid by them in this regard under Section 73 of the
Finance Act, 1994..
25.
Now I come to the next issue that of whether Freight Booking Income, Munshina
,Hamali charges and Builty Charges received by the said service provider falls within the
ambit of taxable service as defined under “Business Auxiliary Service” (BAS). I find that
the show cause notice has demanded Rs. 14335/- on the said income/commission under
OIO No. 56/STC/AHD/ADC(JSN)2012-13
21
the category of BAS, for the period from 2006-07 to 2010-11. The assessee vide their
dated 18.07.2012 have enclosed 09 challans evidencing payments by them under
“Business Auxiliary Services” as under :
Sr.No.
Period
Amount (Rs.)
Challan date
1
Oct-Dec 2006-07
24
05.07.2012
2
Jan-March 2006-07
1979
05.07.2012
3
April-June 2007-08
256
05.07.2012
4
July-Sep 2007-08
206
05.07.2012
5
Oct-Dec 2007-08
112
05.07.2012
6
June - March 2007-09
21
05.07.2012
7
April-June 2009-10
7632
05.07.2012
8
July-Sept 2009-10
7600
05.07.2012
9
Oct-Dec 2009-10
4256
05.07.2012
TOTAL
22086
25.1
Also in the said letter dated 18.07.2012, I find that the said service provider has
further submitted that they have paid service tax along with interest as demanded in Para
13 of the Show cause notice dated 23.04.2012. However, in absence of any clarification as
to how the above figures have been arrived and what constitutes the tax/interest, I
cannot allow them the benefit on this issue. Also the said service provider has also not
cared to file any defense to put forth their case on the issue. Further, I find that the said
service provider in his statement dated 27.02.2012 has admitted that Freight Booking
Income, Munshina ,Hamali charges and Builty Charges etc has been received by them as
“Other Income” and that they fall under the category of BAS. In view of the above, I
confirm the amount of Rs. 14,335/- in this regard under Section 73 of the Finance Act,
1994.
26.
The next issue is whether the amount collected towards “Rent Income” by the
said service provider to the tune of Rs. 17,02,040/- falls under the category of ‘Renting of
Immovable Property Service’. I find that the show cause notice has demanded Rs.
1,92,192/- on the said Rent Income for the period from 2007-08 to 2010-11. In this
connection, I find that Shri Madan Renuklal Chopra, Proprietor of M/s. Chopra Logistic, in
his statement recorded on 27-02-2012 has fully agreed with the Service Tax liability of
Rs.1,92,192/- for the year 2007-08 to 2010-2011 to be paid along with applicable interest.
In view of the above, I confirm the amount of Rs. 1,92,192/-under under the category of
‘Renting of Immovable Property Service’ under Section 73 of the Finance Act, 1994
27.
As discussed above, the entire demand has been held to be sustainable on
merits and has been accepted by the assessee also. Thus I find that it was the duty of the
said service provider to declare such activities, and receipt towards the same in their ST-3
returns filed by them from time to time. ST-3 returns are prescribed under the statute so
that department can form view with regard to the taxability of the services. I find that the
said service provider had failed to provide the same to the department. The said service
tax is not discharged by them as provided under section 68 of the Finance Act, 1994. Had
it not been for the search conducted by the Preventive Section to verify the facts, the
same would have remained suppressed. I find that the said service Provider had
deliberately ignored to honor number of summons issued to him/her and has deliberately
withhold providing of crucial documents which were required for investigation for
quantification of Service Tax liability. Further, I find that the said service provider had
deliberately not got Registration under the category of Business Auxiliary Service &
OIO No. 56/STC/AHD/ADC(JSN)2012-13
22
Renting of Immovable Property Service and not paid Service Tax on the aforesaid
Services. All these acts of contravention of the provisions of Section 66, 68, 70, 73A and 83
of the Finance Act, 1994 read with Rules 4, 5, 6 and 7 of the Service Tax Rules, 1994 are to
be punishable under the provisions of Section 76, 77 of the Finance Act, 1994. Moreover,
in addition to the contravention, omission and commissions on the part of the said Service
Provider as stated in the foregoing paras, I find that they have willfully suppressed the
facts, nature and value of service provided by them with an intent to evade the payment
of Service Tax, rendering themselves liable for penalty under Section 78 of the Finance
Act, 1994.Under the circumstances, I find that they suppressed material facts with intent
to evade service tax, and I find that the demand of service tax is also sustainable on
limitation. Therefore, I find that the charge of suppression of material facts with intention
to evade service tax has been conclusively established herein above. In view of the above,
I find that extended period for demand of service tax under the proviso to section 73(1) of
the Finance Act, 1994 was rightly invoked and the SCN is sustainable on limitation.
Therefore demand of Service tax of Rs. 48,07,276/- {Rs. 46,00,749/- + Rs. 1,92,192/- + Rs.
14,335/- } is recoverable from the said service provider along with Interest as provided in
proviso to Section 73(1) of the Finance Act, 1994 read with Section 75 of the Act ibid.
28.
Since the said assessee had not discharged service tax liability on the amount of
taxable value on the services mentioned in the foregoing paras and as demanded under
the show cause notice and therefore, they have contravened the provisions of Section 67,
68 and 70 of the Finance Act, 1994 and thereby rendered themselves liable to penal
action under Sections 76, 77 & 78 of Finance Act 1994.
29.
As regards the issue of imposition of penalty under Section 76 of the Finance Act,
1994, I observe that penalty under Section 76 and 78 of the Finance Act, 1994 are
mutually exclusive w.e.f. 10.05.2008 and once penalty under Section 78 is imposed, no
penalty under Section 76 can be imposed in terms of the proviso inserted in Section 78
w.e.f 10.5.2008 in this regard. Therefore, no penalty under Section 76 is imposable for the
period from 10.5.2008 onwards. In the case before me, the demands of service tax is for
the period from 1.04.2006 to 31.03.2011, therefore, I hold that penalty under Section 76
of the said Act is not imposable on the said service provider for the period from 10.5.2008
onwards. However, for the period from , as the said service provider have not paid service
tax within the stipulated time period as prescribed under Section 68 of the Finance Act,
1994 read with Rule 6 of the Service Tax Rules, 1994, I hold them liable to penalty under
Section 76 of the Finance Act, 1994. My conclusion is also based on various decisions of
Hon’ble High Courts & Tribunals as mentioned below ;






CCE & ST Vs First Flight Couriers Ltd reported at 2007(8) STR 225 (Kar.)
UOI Vs Aakar Advertising, reported at 2008 (11) STR.5 (Raj.)
UOI Vs Shiv Ratan Advertisers reported at 2008 (12) STR 690 (Raj.)
Shiv Network Vs CCE, Daman reported at 2009 (14) STR 680 (Tri-Ahmd)
CCE, Vapi Vs Ajay Sales Agencies reported at 2009 (13) STR 40 (Tri–Ahmd)
Siddhi Motors Vs CCE, Rajkot reported at 2009 (15) STR 422 (Tri-Ahmd)
29.1 I further observe that the Hon’ble CESTAT in the case of M/s Gujarat Industrial
Security Force Society Vs CST, Ahmedabad, vide order No. A/1110/WZB/AHD/2010
dated 05.08.2010, has held that no lenient view can be taken under section 76 of the
Finance Act, 1994. The relevant paras are reproduced below;
“2.
After hearing both the sides, I find that in this case, the assessee was
registered more than 6 years back and no explanation has been given by them for
delayed filing of return and delayed payment of service tax. Under these
circumstances, I am not finding fault in stand taken by the lower authority that
penalty is imposable under section 76 and once it is held that penalty is
imposable under section 76, the amount fixed as per the provision of section 76 is
required to be imposed. Under these circumstances, even though the Ld. Advocate
submitted that the appellant is a non profit organization, no lenient view can be
taken in view of the provisions of law.
3.
Accordingly, the appeal is rejected.”
OIO No. 56/STC/AHD/ADC(JSN)2012-13
23
29.2 Hon’ble High Court of Gujarat in the case of CCE & Cus. Vs Port Officer, reported
at 2010 (19) STR 641 (Guj) has now settled the issue of penalty under Section 76. The
relevant para is reproduced below ;
“10. A plain reading of Section 76 of the Act indicates that a person who is liable
to pay service tax and who has failed to pay such tax is under an obligation to
pay, in addition to the tax so payable and interest on such tax, a penalty for such
failure. The quantum of penalty has been specified in the provision by laying
down the minimum and the maximum limits with a further cap in so far as the
maximum limit is concerned. The provision stipulates that the person, who has
failed to pay service tax, shall pay, in addition to the tax and interest, a penalty
which shall not be less than one hundred rupees per day but which may extend to
two hundred rupees for everyday during which the failure continues, subject to
the maximum penalty not exceeding the amount of service tax which was not
paid. So far as Section 76 of the Act is concerned, it is not possible to read any
further discretion, further than the discretion provided by the legislature when
legislature has prescribed the minimum and the maximum limits. The discretion
vested in the authority is to levy minimum penalty commencing from one
hundred rupees per day on default, which is extendable to two hundred rupees
per day, subject to a cap of not exceeding the amount of service tax payable.
From this discretion it is not possible to read a further discretion being vested in
the authority so as to entitle the authority to levy a penalty below the stipulated
limit of one hundred rupees per day. The moment one reads such further
discretion in the provision it would amount to re-writing the provision which, as
per settled canon of interpretation, is not permissible. It is not as if the provision
is couched in a manner so as to lead to absurdity if it is read in a plain manner.
Nor is it possible to state that the provision does not further the object of the
Statute or violates the legislative intent when read as it stands. Hence, Section 76
of the Act as it stands does not give any discretion to the authority to reduce the
penalty below the minimum prescribed.”
29.3 The Hon’ble High Court of Gujarat has further confirmed the above view in the
case of CCE Vs S J Mehta & Co., reported at 2011 (21) STR 105 (Guj.) and CCE Vs Bhavani
Enterprises reported at 2011 (21) STR 107 (Guj.).
30.
I further find that it is a matter of fact that the said service provider had failed to
file prescribed Service Tax return within the stipulated time; failed to furnish the records
and failed to take Service Tax Registration under the category of Business Auxiliary
Service & Renting of Immovable Property Service and, also failed to furnish required
information as called for by the Central Excise Officer. I also find that they failed to
remain present before Central Excise officer who had issued summons on various dates.
Further they neither declared the payments particulars in their ST-3 returns nor paid the
service tax payable thereof and nor obtained Service Tax Registration for such services
for the period from 1.06.2007 to 30.01.2012. Therefore, I hold them liable to penalty
under Section 77 of the Finance Act, 1994.
31.
As regards imposition of penalty under Section 78, I find that as the said assessee
had suppressed the facts with intention to evade payment of service tax, penalty under
Section 78 of the Finance Act, 1994 is mandatorily imposable as has been held by the
Apex court in the case of Dharmendra Textile Mills Ltd-2008 (231) ELT 3 (SC) and
Rajasthan Spinning & Weaving Mills Ltd-2009 (238) ELT 3 (SC). Therefore, I hold that
penalty is imposable on the said assessee under Section 78 of the Finance Act, 1994. I,
therefore, hold that they have rendered themselves liable to penalty under Section 78
of the Finance Act, 1994. My above view gets support from below mentioned case laws;
 Shiv Network Vs CCE, Daman reported in 2009 (14) STR 680 (Tri.Ahmd.)
 CCE, Vapi Vs Ajay Sales Agencies reported in 2009 (13) STR 40 (Tri. Ahmd.)
 Order No. A/754/WZB/AHD/2010 dt. 09.06.2010 / 23.06.2010 in the case of M/s
Bajrang Security Services Vs CST, Ahmedabad.
OIO No. 56/STC/AHD/ADC(JSN)2012-13
24
 Order No. A/1937/WZB/AHD/2010 dated 08.10.2010 / 20.12.2010 in the case of
M/s Dhaval Corporation Vs CST, Ahmedabad.
31.1 I further observe that recently hon’ble High Court of Punjab & Haryana, in the
case of CCE Vs Haryana Industrial Security Services reported at 2011 (21) STR 210 (P&H),
has also upheld the penalty equal to service tax imposed under Section 78 of the
Finance Act, 1994. Hon’ble Karnataka High Court has also taken similar view in the case
of CCE, Mangalore Vs K Vijaya C Rai reported at 2011 (21) STR 224 (Kar.)
31.2 I also find that penalty under Section 76 ibid is provided for failure to pay service
tax whereas penalty under Section 78 ibid is for suppressing value of taxable service. In
the instant case, service tax liable to be paid in terms of Section 68 read with Rule 6 of
the Service tax Rules, 1994, have not been found paid as well as service tax has not been
paid / short paid by suppressing value of taxable service by reason of wilful misstatement and suppression of facts. Of course these two offences may arise in the
course of same transaction, or from the same action of the person concerned. But the
incidents of imposition of penalty are distinct and separate and even if the offences are
committed in the course of same transaction or arises out of the same act the penalty is
imposable for ingredients of both offences, this aspect was also considered by the
Hon’ble High Court of Kerala in the case of Assistant Commissioner, C.Ex. Vs Krishna
Poduval – 2006 (1) STR 185 (Ker). I also find that the Hon’ble Mumbai Tribunal in the
case of Golden Horn Container Services Pvt. Ltd. v/s Commr. of C. Ex., Raipur reported at
2009 (16) S.T.R. 422 (Tri.-Mumbai), has held that Section 76 provides for a penalty who
commits default simpliciter in payment of the tax whereas section 78 is a more stringent
penal provision, which provides harsher penalty who commits default with mens rea.
Since in this case also, the said service provider has committed default with mens rea,
the decision of the tribunal is squarely applicable.
32.
Further, as regards imposition of simultaneous penalty, I place my reliance on
the judgment of Hon’ble High Court of Kerala in the case of Assistant Commissioner of
Central Excise v. Krishna Poduval (supra) which is aptly applicable to the present case. I
find that the imposition of penalty under sections 76 and 78 of the Act is for non
payment of service tax and suppression of value of taxable service respectively which
are two distinct and separate offences attracting separate penalties. I find that the said
assessee have committed both the offences and therefore penalties under section 76
and 78 of the Finance Act, 1994 are imposable on the said service provider for the
period upto 9.5.2008. Therefore, I am of the view that in the facts and circumstances of
the case, it is justifiable, if the penalty is imposed under the provisions of Section 76 and
78 of the Finance Act, 1994, separately, following the decisions of Hon’ble Kerala High
Court and Mumbai tribunal (supra). My views are also further supported by various
decisions of tribunals in the cases of ;
a) Shiv Network v/s Commissioner of Central Excise & Customs, Daman reported at
2009 (14) S.T.R. 680 (Tri.-Ahmd.)
b) Commissioner of Central Excise, Vapi v/s Ajay Sales Agencies reported at 2009
(13) S.T.R. 40 (Tri.-Ahmd.), and
c) Mett Macdonald Ltd. v/s Commissioner of Central Excise, Jaipur reported at
2001 (134) E.L.T. 799 (Tri.-Del.).
d) M S Shah & Co., Vs CST, Ahmedabad – Order No. A/1328/ WZB/ Ahd/ 2010 dated
30.06.2010 / 26.08.2010.
e) Bajarang Security Services Vs CST, Ahmedabad – Order No. A/745/
WZB/Ahd/2010 dated 09.06.2010 / 23.06.2010.
f) CESTAT, Principal Bench, New Delhi in the case of Bajaj Travels Ltd., Vs CCE,
Chandigarh – 2009 (16) STR 183 (Tri.Del.)
33.
In light of the aforesaid discussions and findings I hold that the service tax
amount of Rs. 48,07,276/- along with interest is liable to be confirmed under Section
OIO No. 56/STC/AHD/ADC(JSN)2012-13
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73(1) of the Finance Act,1994 read with Section 75 of the Act ibid and they are also
liable to penalty under the provisions of Section 76, 77 and 78 of the Finance Act,1994.
34.
Accordingly, I pass the following order:ORDER
i.
I order that the Services rendered/provided by them as discussed in Paras 22 to
24 be considered as taxable service under the category of “Goods Transport
Agency Service” as defined under Section 65 of the Finance Act, 1994, as
amended, and the said service provider be considered as the person liable to pay
service tax as per rule 2(1)(d)(v) of Service Tax Rules, 1994. Accordingly, I order
that the amount of taxable value of Rs.3,99,84,387/- received as
payment/recovered by them from their clients, under “Goods Transport Agency
Service” be considered as taxable value under Section 67 of the Finance Act
1994.
ii.
I order that the service rendered/provided by them as discussed at Para 25 to
be considered as taxable service under the category of “Business Auxiliary
Service” as defined under Section 65 of the Finance Act, 1994 as amended, and
the amount of taxable value of Rs. 1,37,073/- received as payment/recovered by
them from their clients be considered as taxable value under Section 67 of the
Finance Act, 1994.
iii.
I order that the service rendered/provided by them as discussed at Para 26 to
be considered as taxable service under the category of “Renting of Immovable
Property Service” as defined under Section 65 of the Finance Act, 1994 as
amended, and the amount of taxable value of Rs. 17,02,040/- received as
payment/recovered by them from their clients be considered as taxable value
under Section 67 of the Finance Act, 1994.
iv.
I confirm the demand of Service Tax amounting to Rs. 47,00,632/- (Rupees
Forty Seven Lacs and Six Hundred and Thirty Two only) for the period from
1.04.2006 to 31.03.2011, and order to recover the same from them under
Section 73(1) of Finance Act, 1994 under the category of “ Goods Transport
Agency Service”. As the said Service provider has already paid Rs. 99,883/(Rupees Ninety Nine thousand Eight Hundred and Eighty Three only), I
appropriate and adjust the same against the above said demand.
v.
I confirm the demand of Service Tax amounting to Rs. 14,335/- (Rupees Fourteen
Thousand Three Hundred and Thirty Five Only) for the period from 1.04.2006 to
31.03.2011, and order to recover the same from them under Section 73(1) of
Finance Act, 1994 under the category of “Business Auxiliary Service.”
vi.
I confirm the demand of Service Tax amounting to Rs. 1,92,192/- (Rupees One
Lac Ninety Two Thousand One Hundred and Ninety Two Only) for the period
from 1.06.2007 to 31.03.2011, and order to recover the same from them under
Section 73(1) of Finance Act, 1994 under the category of “ Renting of Immovable
Property Service.”
vii.
I direct the assessee to pay the interest as applicable on the amount of their
service tax liability for the delay in making the payment under Section 75 of the
Finance Act, 1994 on the Service Tax demanded under para (iv), para (v) & para
(vi) above.
OIO No. 56/STC/AHD/ADC(JSN)2012-13
26
viii.
I impose a penalty of Rs. 200/- (Rupees Two Hundreds Only) per day or at the
rate of 2% of the service tax amount per month, whichever is higher, subject to
maximum of the outstanding tax amount, from the date on which such tax was
due till 09.05.2008 or the actual payment of outstanding tax amount, whichever
is earlier, under the provisions of Section 76 of the Finance Act, 1994, as
amended, for failure to pay Service Tax within the stipulated period as required
under the provisions of Section 68 (1) of the Finance Act, 1994 read with Rule 6
of the Service Tax Rules, 1994, as amended.
ix.
I impose a penalty of Rs.10,000/- (Rupees Ten thousand Only) under Section 77
of the Finance Act, 1994.
x.
I also impose a penalty of Rs. 48,07,276/- (Rupees Forty Eight Lacs Seven
Thousand Two Hundred and Seventy Six only) upon them under Section 78 of
the Finance Act, 1994 for suppressing the value of taxable services provided by
them before the Department with intent to evade payment of service tax. If the
service tax amount is paid along with appropriate interest as applicable, within
30 days from the date of receipt of this order, then the amount of penalty under
Section 78 shall be reduced to 25% of the service tax amount, provided if such
penalty is also paid within such period of 30 days.
[J S Negi)
Additional Commissioner
Service Tax : Ahmedabad
F.No: STC/04-06/O&A/ADC/Prev/R-IX/D-II/12-13
Date : 22 .03.2013
By R.P.A.D/Hand Delivery
To,
M/s. Chopra Transport Agency,
27-28-29, Swastik Estate, Opp. Transport Nagar,
Narol Charrasta, Narol
Ahmedabad
Copy to:
1. The Deputy Commissioner (Prev.), Service Tax, Ahmedabad
2. The Deputy Commissioner, Division-II, Service Tax, Ahmedabad.
3. The Superintendent, Range-IX, Service Tax, Dn.- II, Ahmedabad with an extra copy of
OIO to be delivered to the assessee and send an acknowledgement to this office.
4. Guard File