Page 110 - GSTL_11th June 2020_Vol 37_Part 2

196 GST LAW TIMES [ Vol. 37
can also be charged for the quantity that has not been transported because
no service has been provided at all. Hence, the fact that the service recipient
has assured the payment of charges against minimum quantity of goods
per month per vehicle to the notice proves that this is not a case of transport
of goods by road and the noticee is not acting as a goods transport agency.
21.4 As discussed in the preceding para, the contract entered into by the
noticee envisages a minimum assured quantity to them and they are enti-
tled to payments relating to the minimum assured quantity even if the said
minimum quantity is transported or not. In fact both the agreements dated
1-4-2008 and dated 1-4-2011 specify the minimum load per month per vehi-
cle and not just the minimum load per month. This is very crucial fact in
deciding the matter. The invoice raised shows the amount charged for actu-
al transportation done (4955.75) and also charges additional amounts to-
wards the difference between the minimum assured quantity and the actual
quantity transported (6964.25). The bill so raised clearly shows that while
they have actually transported a quantity of 4955.75 of RMC, they have
charged and recovered consideration for a total quantity of 11920 of RMC
which is the minimum assured quantity. It is obvious that the quantity of
6964.25 of RMC has never been transported and obviously no consignment
note has been issued for the same.”
8. The contention of the appellant that the essential character of the
service, as contemplated under Section 65A of the Act, should be examined was
also not accepted for the reason that the service provided by the appellant was
classifiable under Section 65(105)(zzzzj) and, therefore, there was no reason to
refer to the provisions of Section 65A of the Act.
9. Shri B.L. Narasimhan, Learned Counsel appearing for the appellant
has made the following submissions :-
(i) The activity undertaken by the appellant is of transportation of
RMC and is classifiable under GTA service and the service recipient
had been discharging appropriate Service Tax on a reverse charge
basis;
(ii) The relevant period is from 2009-10 to 2012-13 and so it involves
both pre-negative as well as post-negative list period;
(iii) For the pre-negative list i.e. prior to 1 July, 2012, Section 65(50b) de-
fines GTA and Section 65(105)(zzp) relates to taxable service to be
provided to any person by a GTA in relation to transport of goods
by road in a goods carriage. Thus, there should be transportation of
goods by road and consignment notes should be issued, which con-
ditions were satisfied by the appellant;
(iv) For the post-negative list period i.e. from 1 July, 2012 upto 31
March, 2013, Section 65B(44) read with Section 65B(26) of the Act
provides that there should be an activity in relation to transport of
goods by road, issuance of a consignment note by the GTA, activity
should be performed by a GTA for another and the activity is per-
formed for consideration, which conditions were also satisfied by
the appellant.
(v) The extended period of limitation could not have been invoked in
the show cause notice.
10. Shri Vivek Pandey, Learned Authorized Representative of the De-
partment, however, submitted that there is no error in the findings recorded in

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