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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 ..... were provided by independent chartered accounts, after verification of books of accounts, for obtaining an independent and unbiased opinion regarding correctness of the demand of service tax thereon. In the impugned order, however, the ld. adjudicating authority, without commenting upon the correctness of such certificates, completely brushed them aside on the ground that such certifications ought to have been obtained only by such Chartered Accountants, who are Statutory Auditors of the Appellant, without providing any legal basis for such requirement. The reason given by the ld. adjudicating authority to reject the CA certificate not agreed upon. Also, 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. Interest and penalty - HELD THAT:- Since the demand of service tax is not sustainable, the question of demanding interest and imposing penalty does not arise and accordingly, the same is set aside. Conclusion - The demand confirmed vide the impugned order solely based on comparison of books of accounts with service tax returns, without analyzing the reasons for the dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ker on road Goods transport from Indian Railway Terminal to last post near Nepal 7, 96, 975 59, 04, 185 1, 33, 155 1, 75, 984 4. * FY 2011-12: Specific expenses Goods transport on road from railway head to godown 41, 03, 689 1, 05, 670 TOTAL 5, 68, 52, 30, 644 17, 49, 80, 654 2.3. On the basis of such allegations, a Show Cause Notice bearing No. 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. Companies Act read with the relevant accounting standards on one hand and the Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. c. Expenses incidental to transportation whereon tax charged by service provider: * Expenses incidental to transportation totaling to Rs. 75, 00, 82, 705/- incurred for handling, loading, unloading, forwarding, commission, etc. do not fall within the ambit of GTA services. * Without prejudice thereto, the service provider duly charged service tax thereon from the Appellant on the invoice under forward charge mechanism. Therefore, based on the trite law in this regard, the question of payment of service tax thereon for the second time by the Appellant, does not arise at all. * The sum total of Rs. 75, 00, 82, 705/- of incidental expenseshas been duly certified by the Chartered Accountant. d. Purchase of goods: * The head of 'transportation charges' in the books of accounts comprised of purchase of goods (tarpaulin, rope and other miscellaneous goods) summing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, unloading, forwarding, commission, etc. do not fall within the ambit of GTA services. * Without prejudice thereto, the service provider duly charged service tax thereon from the Appellant on the invoice under forward charge mechanism. Therefore, based on the trite law in this regard, the question of payment of service tax thereon for the second time by the Appellant, does not arise at all. * The sum total of Rs. 75, 00, 82, 705/- of incidental expenses have been duly certified by the Chartered Accountant. 6.2. We take note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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