Page 111 - GSTL_11th June 2020_Vol 37_Part 2

2020 ] GUNESH LOGISTICS v. COMMISSIONER OF C. EX. & SERVICE TAX, JAIPUR-I 197
the impugned order confirming the demand raised in the show cause notice. In
this connection the following submissions have been made :-
(i) A perusal of the works order dated 1 April, 2008 would clearly indi-
cate that what was intended by the parties was actually supply of
‘transit mixer’ and, therefore, the service provided by the appellant
would actually be classifiable under STG and not GTA.
(ii) The Commissioner has correctly appreciated the terms of the work
orders to conclude that the appellant is not performing GTA service
since the appellant has been assured a minimum compensation
against the supply of tangible goods per month per vehicle even if
the said quantity is transported or not. The invoice has, therefore,
raised a bill for certain quantity of RMC never transported and,
therefore, no consignment note can be said to have been issued for
the same.
(iii) Merely describing that the work was for transport of RMC in vehi-
cles would not mean that work order was essentially for transporta-
tion of RMC since the intention of the parties was to claim the bene-
fit of exemption notification, which exemption notification has to be
strictly construed in terms of the decision of the Supreme Court in
Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Compa-
ny.[2018 (361) E.L.T. 577 (S.C.)], and
(iv) The activity is a specialized activity and it is covered by paragraph
4.4.2 of the Circular dated 29 February, 2008 issued by the Central
Board of Excise and Customs, New Delhi.
11. We have considered the submissions advanced by the Learned
Counsel for the appellant and the Learned Authorized Representative of the De-
partment.
12. In order to appreciate the submissions it would be appropriate to
refer to the work orders. The first order is dated 1 April, 2008 and is for a period
of three years. The second work order is dated 1 April, 2011 and is valid for the
period commencing 1 April, 2011 upto 30 September, 2012. The third work order
is dated 1 March, 2013 and is valid up to 31 May, 2013. The relevant terms of the
first work order dated 1 April, 2008 are reproduced below :-
“1. You shall load material (Ready Mix Concrete) in your Vehicles, transport the
same to the required destinations unload the material at customer sites, return and
take another load on similar basis in a clean vehicle in accordance with prudent in-
dustrial practices.
2. For this purpose you will deploy fleet of 6 M3 Capacity of vehicles mounted on
suitable chassis in numbers adequate to transport 9000 M3 of Ready Mix Concrete
every month.
3. The services shall commence within 15 days from the date of ac-
ceptance of this work order.
11. Transportation Charges: The transportation charges payable to you shall be
as below :
(a) Rs. 140/- per cum for quantity of Ready Mix Concrete transported
during a calendar month; and
(b) Rs. 20.34 per km for distance travelled during the month in the
transportation of our Ready Mix Concrete.

GST LAW TIMES  11th June 2020  111