Page 96 - GSTL_3rd September 2020_Vol 40_Part 1

30 GST LAW TIMES [ Vol. 40
of Demand and denied the liability stating that the petitioner was providing
goods transportation agents services within the meaning of Section 65(105)(zzp)
and therefore service tax if any was payable only by the recipient of service and
not by the provider of services.
6. The petitioner also submitted that with effect from 26-6-2008, supply
of service of goods carriage, without transferring the right of possession in effec-
tive control of goods provided by any person to goods transport agency for use
by a goods transport agency to provide service within the meaning of Section
65(105)(zzp) of the Finance Act, 1994 was exempt in terms of Notification No.
29/2008-S.T., dated 26-6-2008 and later under Notification No. 1/2009-S.T., dated
5-1-2009 was issued.
7. Personal hearing was conducted before the respondent-
Commissioner of Central Excise and Service Tax, Salem on 11-5-2015. During the
course of hearing, the petitioner filed an additional submission and enclosed a
chart giving the working to substantiate that the gross receipt as per the show
cause notice and TDS under Sections 194C and 194-I of the Income-tax Act, 1961.
The petitioner also furnished TDS certificates evidencing deduction under Sec-
tion 194C and 194-I of the Income-tax Act, 1961 and therefore requested for
requantification of the tax. The reply filed by the petitioner did not clearly spell
out the reasons as to why the tax was not payable except for mere denial of tax
liability and based on TDS certificate under Sections 194C and 194-I of the In-
come-tax Act, 1961. The reply merely dealt with the interpretation of law without
dealing with the factual allegations in the Show Cause Notice and the Statement
of Demand.
8. At the time of personal hearing, the petitioner partially agreed that it
was liable to pay tax only towards ‘Supply of Tangible Goods’, i.e., the lorries
meant for transporting ready mix concrete and to the extent the GTA service was
provided it was not liable to service tax.
9. Pursuant to the above, the respondent passed a detailed Order-in-
Original Sl. No. 09/2015, dated 29-5-2015 and confirmed the demand of service
tax of Rs. 1,29,55,016/- and interest under Section 75 of the Finance Act, 1994 and
also levied penalty under Section 77(1)(a) of the Finance Act, 1994 and a further
penalty of Rs. 10,000/- under Section 77(2) and a further penalty equivalent to an
amount of tax not paid by the petitioner under Section 78 of the Finance Act,
1994.
10. Instead of filing an appeal before the Appellate Tribunal, the peti-
tioner has filed an application under Section 74 of the Finance Act, 1994 question-
ing the quantification arrived by the respondent stating that the basis on which
the demand has been arrived in the order passed by the respondent was not the
basis on which the demand was proposed in the show cause notice issued to the
petitioner. It is stated that taxable amount has been arrived based on the balance
sheet and the bank statements of the petitioner whereas in the show cause notice,
the tax was arrived based on Form 26AS and therefore there should be requanti-
fication. It is the contention of the petitioner that gross receipt for which there
was deductions made under Section 194C should not be taken into account for
computing the tax liability as it is for service provided towards ’Goods Transpor-
tation Agents Service’ which is not taxable in the hands of the petitioner.
11. I have perused the records and considered the arguments advanced
on behalf of the petitioner and the respondent.

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