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TMI Blog2025 (3) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata, wherein the Ld. Commissioner has confirmed the demand of service tax of Rs. 17, 49, 80, 653/- along with interest and equivalent amount of tax as penalty. 2. The facts of the case are that M/s. Ultratech Cement Ltd., 22, Camac Street, Block-D, 4th Floor, Kolkata-700016 (the Appellant herein) is a marketing office of the east zone. The Appellant obtained service tax registration, as a service recipient, under GTA Service category for payment of tax under Reverse Charge Mechanism ('RCM'). 2.1. During the underlying period from FY 2009-10 to FY 2012-13, the Appellant incurred various transportation expenses (by road/ rail), and other expenses incidental and ancillary thereto. All such expenses along with provisions were duly account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . C. No. V(15)330/ST- Adjn/Commr/14/19872 dated 20.10.2014 was issued to the appellant demanding service tax of Rs. 17, 49, 80, 654/-, along with interest and penalty. 2.4. On adjudication, the Ld. Commissioner, vide the impugned order, confirmed the demand of service tax of Rs. 17, 49, 80, 654/- along with interest and imposed equal amount of tax as penalty under Section 78 of the Finance Act, 1994. Aggrieved against the confirmation of the said demands, the appellant has filed this appeal. 3. The Ld. Counsel appearing on behalf of the appellant submits that the amounts reflecting in the books of accounts (balance sheet, profit and loss account, etc.) and service tax returns are reported in accordance with the applicable laws viz. Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an independent and unbiased view on the taxability/ non-taxability of the amounts reflecting in the books of accounts. They have submitted a summary of such differences as explained in the CA certificate is as follows: a. Exempt Consignments: * The Appellant received GTA services from certain service providers where the value of individual consignments transported was less than Rs. 750/- whereas for multiple consignments, was less than Rs. 1, 500/-. * Since such GTA serviceswere exempt from levy of service tax vide Notification No. 34/2004-ST dated 03.12.2004 and Notification No. 25/2012-ST dated 20.06.2012, the Appellant did not discharge the service tax under RCM. * The value of such exempt services sums to Rs. 15, 80, 36, 760/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch purchase has been duly certified by the Chartered Accountant. e. Provisions created in the books of accounts: * Provisions summing to Rs. 14, 55, 14, 470/- made in the books of accounts cannot be subject to service tax since these are not actual expenses but only a mandatory provisions which recognize the expenses to be incurred during a particular financial year. 3.3. However, the appellant points out that without having any regard to the Appellant's submissions and the CA Certificates, the impugned Order confirmed the demand on the ground that no documents were furnished to substantiate the Appellant's claim. Thus, the appellant submits that the demands confirmed in the impugned order are liable to be set aside. 4. The Ld. Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certified by the Chartered Accountant. (ii) Transportation by rail: * As per the definition of GTA services under Section 65(105)(zzzp) of the Finance Act, 1994, such services do not include within their ambit the services of transportation undertaken by rail. * Therefore, such services cannot be held taxable under RCM under the category of GTA services, and hence, the demand to such extent ought to be set aside on this ground alone. * The value of such services sums to Rs. 737, 73, 81, 636/- as certified by the Chartered Accountant. (iii) Expenses incidental to transportation whereon tax charged by service provider: * Expenses incidental to transportation totalling to Rs. 75, 00, 82, 705/- incurred for handling, loading, unloadin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry value. Therefore, such certificate ought to be objectively examined. We observe that this view has been held in the case of Hero Motocorp Ltd. V. Commissioner of C.Ex. (Import & General) [2014 (302) E.L.T. 501 (Del.)]. Further, such certificate cannot be brushed aside without providing another expert opinion to the contrary. This view has been held in the case of Commissioner of C.Ex., Guntur v. Empee Sugar & Chemicals [2007 (2011) E.L.T. 293 (Tri. Bang.)] and Business Overseas Corporation v. CC, New Delhi [2015 (317) E.L.T. 637 (Tri. Del.)]. 6.3. We further observe that the independent CA Certificates have been issued based on verification of books of accounts of the Appellant and they certify that the demand is not sustainable. 7. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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