Whether transportation of food grains under PDS leviable to service tax under GTA?

PJ/CASE LAW/2016-17/3130

Case:-COMMISSIONER OF CENTRAL EXCISE, AURANGABAD VERSUS M/s SHIVAJI HANUMANTRAO HUDE

Citation:-2016-TIOL-1085-CESTAT-MUM

Brief Facts:-This appeal is filed by the Revenue against Order-in-Appeal No. AGS(89)49/2010 dated 17.05.2010 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad. The respondent has also filed a cross objection. The appeal and cross objection are disposed of by a common order.

Reasoning of Judgment:-Heard both sides and perused the records.
Revenue is aggrieved by the impugned Order-in-Appeal on the ground that the respondent being a transporter of food grains of P.D.S. is liable to discharge the Service Tax liability under the category of “Goods Transport Agency Services”, while the first appellate authority has held in favour of the assessee on a finding that respondent is a truck owner and need not pay Service Tax liability as held by the Tribunal in the case of Commissioner of Central Excise & Customs, Guntur Vs. Kanaka Durga Agro Oil Products Pvt. Ltd. - 2009 (15) STR 399 (Tri.-Bang.). It is also the case of the Revenue that appellant is a Goods Transport Agency, as defined under Section 65(50b) of the Finance Act, 1994 read with Section 65(105)(zzp) of the Finance Act, 1994 during the period January, 2005 to March, 2008 as a transport contractor for Government of Maharashtra i.e. District Supply Officer, Latur. We find no merits in the appeal filed by the Revenue.
Firstly, respondent is engaged in delivery of food grains as per direction of the District Supply Officer/District Collector, Latur, under P.D.S. scheme. The claim of the Revenue is that respondent had issued a consignment notes is unsustainable. We find as correctly submitted by learned Counsel, that respondent issues periodical bill and it is not consignment note or biltees which is primary requirement to classify the activity under Goods Transport Agency as a taxable service. We perused the sample copy of invoice issued by respondent and found that these invoices are in form No. 2, a form prescribed by Government of Maharashtra, by any stretch of imagination cannot be considered as consignment note. This factual matrix is not contested by the Revenue in ground of appeal.
Secondly, the issue is now squarely covered by the following judgments of the Tribunal-
a) Western Coal Fields Ltd. Vs. CCE, Nagpur - 2015-TIOL-1289-CESTAT-MUM
b) South Eastern Coal Fields Ltd. Vs. CCE, Raipur (Chattisgarh) -2014-TIOL-1554-CESTAT-DEL
c) Nandaganj Sihori Sugar Co. Ltd. Vs. CCE, Lucknow 2014 (34) STR 80 (Tri. - Del.)
d) Birla Ready Mix Vs. CCE, Noida 2013 (30) STR 99 (Tri. -Del.)
The ratio of the above judgment will cover the issue in favour of the respondent. Accordingly, we hold that the impugned order is correct, legal and does not suffer any infirmity. The appeal filed by the Revenue is rejected and cross objection filed by the respondent being in support of the impugned order is also disposed of.

Decision:-Appeal Rejected.

Comment:-The crux of this case is that consignment note or biltees which is primary requirement to levy tax under Goods Transport Agency is absent in the present case. This is for the reason that the respondent issues periodical bill which cannot be regarded as consignment note or biltees. Moreover, respondent is truck owner and need not pay Service Tax liability as held by the Tribunal in the case of Commissioner of Central Excise & Customs, Guntur Vs. Kanaka Durga Agro Oil Products Pvt. Ltd. - 2009 (15) STR 399 (Tri.-Bang.).

Prepared by: Hushen Ganodwala

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PJ/CASE LAW/2016-17/3130

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