TaxTMI 
TaxTMI 
2024 (2) TMI 909
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....s" service against M/s Rohit Poles, 386, Karwal, Ralhupura (Dandi), Mugalsarai, Chandauli 232101 under Section 73 (2) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017 along with interest under Section 75 of the Finance Act, 1994.. iii. I impose a penalty amounting to Rs 3,43,064/- (Rupees Three Lac Forty Thousand and Sixty Four only) upon M/s Rohit Poles, 386, Karwal, Ralhupura (dandi), Mugalsarai, Chandauli 232101 under Section 78 of the Finance Act, 1994 read with Section 174 of CGST Act, 2017. iv. I impose a penalty Rs 5000/- (Rupees Five Thousand only) upon M/s Rohit Poles, 386, Karwal, Ralhupura (Dandi), Mugalsarai, Chandauli 232101 under Section 77(1)(a) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017. v. I impose a penalty Rs 5000/- (Rupees Five Thousand only) upon M/s Rohit Poles, 386, Karwal, Ralhupura (Dandi), Mugalsarai, Chandauli 232101 under Section 77(2) of the Finance Act, 1994 read with Section 174 of CGST Act, 2017. vi. I order to appropriate the service tax amount of rs 3181/-, interest amount of Rs 4236/- and penalty amount of Rs 573/- The Service Tax, Interest and Penalties are to be d....
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....as filed this appeal. 3.1 I have heard Shri Gopal Krishna Darolia and Shri Rajendra Sharma, Authorized Representative for the appellants and Shri Manish raj, Authorized Representative for the revenue. 3.2 Arguing for the appellant learned representatives of the appellant submit that: 3.3 Arguing for revenue learned authorized representative while reiterating the findings recorded in the impugned order submits as follows: • Appellant has entered into separate agreement with M/s Purvanchal Vidyut Nigam Limited and others for transportation of PCC Poles manufactured by them on fixed rates/ per pole depending upon the distance. The rates includes transportation loading and unloading, stacking/ packing etc. • Appellants engaged the services of GTA for the purpose of transportation while for the purpose of loading/ unloading, stacking/ packing they employed casual labours under their own supervision. • From the invoices/ GR/ Bills of the transporters produced by them, it is evident that GTA had performed the work of transportation, and according appellant paid service tax under the RCM on the amount of freight paid by them. • C....
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.... Regn No AAHFRO759EXM001 and is a manufacturer engaged in manufacture and sale of PCC Poles falling under chapter 68 of the Central Excise Tariff and also registered under Service Tax under Finance Act, 1994 having Registration No. AAHFRO7S9ESTO01 for taxable service namely 'Transport of Goods by Road/Goods Transport Agency Service' 7.4. The first issue is whether demand of Service Tax under RCM on the amount received by the party ander Ledger account of "Freight, Insurance & Other Charges', 'Loading &Unloading Charges', 'Pole Shifing & Stacking Charges', Freight, Outward & Other Charges' for the period of FY 2013-14 (Oct' 2013-Ma' 2014) to FY 2017- 18 (Apr' 2017-Jun'-2017) is liable or not. As per ST-3 return as well as submission of the party , It appears that the party got themselves registered under service tax under the category of "Transport of Goods by Road/ Goods Transport Agency Service" as consignee for payment of service tax in terms of the sub- section (2) of section 68 of the Act under RCM and paid the Service Tax for GTA service under RCM. I find that as per party's submission in reply to the impugned SCN, t....
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....racter by applying the principle of classification enumerated in section 65 A. Thus, if any ancillary/intermediate service is provided in relation to transportation of goods, and the charges if any, for such services are included in the invoice issued by the GTA, and not by any other person, such service would form part of GTA service and, therefore, the abatement of 75% would be available on it. The differential (short paid) demand of Service Tax amounting to Rs. 3,31,667/- under the head of "Freight, Insurance & Other Charges', 'Loading & Unloading Charges', 'Pole Shifting & Stacking Charges', Freight, Outward & Other Charges" for the period of FY 2013- 14 (Oct 2013-Ma' 2014) to FY 2017- 18 (Apr' 2017-Jun' 2017) made vide impugned SCN is proper and party is liable to pay the amount of Rs.3,31,667/-under GTA Service along with appropriated interest. .... 7.6. Now, I am taking up the third issue viz. Service Tax under RCM on the Expenditure shown under the head 'Legal & professional Charges' as per Balance Sheet & P/L account for the FY 2013-14 (Oct 2013-Ma' 2014) to FY 2017- 18 (Apr' 2017-Jun' 2017). As per Noti....
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....'freight Outwards & other charges' which includes the entries of amount paid to GTA and loading & unloading charges and separate ledger is also prepared for loading/ unloading charges and pole shifting & stacking charges. Any service provided along with GTA service that is part of composite service and not as separate supplies. However, if such incidental services are provided as separate service and charged separately, whether in the same invoice or separate invoice they shall be treated as separate work. The confirmation of Service Tax of Rs.3,31,667/- on "loading/unloading charges" and "Pole shifting & stacking charges" incurred by the appellant under GTA is not proper as these charges have been paid to casual labours engaged for the purpose and not GTA. 4.3.2 It has been held in the impugned order that the appellant have received the reimbursements of the amount of expenditure occurred under ledger account for "freight, Insurance & other charges", "Loading and unloading charges" "Pole shifting & stacking charges', "freight, outward & other charges" for the period 2013-14(Oct'13 to March'14) to F.Y. 2017-18 (Upto June'17) from PVVNL and the party has....
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....tails of terms and conditions and scope of work, although it has been claimed by the appellant that charges of PCC per poles as per distance has been provided in the agreement with PVVNL. The charges of "Loading and unloading charges, shifting & stacking charges are claimed to be billed to buyers along with invoice. On examination of the ledger A/c it is found that vouchers type have been mentioned but no document/voucher has been provided to show the details of transaction whether the same is against consignment note of GTA or transaction against any sale. It is also seen that that the appellant is a manufacturer of PCC poles and the transaction of sale of PCC pole on payment of central excise duty/VAT, should be inclusive of all the expenses incurred on account of manufacture and sale. These expenses, if part of sale must have to undergo burden of VAT. However the appellant did not provide any documentary evidence to show that these expenses are part of sale and undergone burden of VAT. Hence it is clear that these expenses reimbursed by the recipient are part of services on account of "Loading and unloading charges", "shifting & stacking charges". 4.3.5 Now it is to be ....
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....eceived from individual advocates as per Notification No.30/2012-ST dated 20.06.2012. The rest amount of Rs.58,760/- shown under Legal & Professional Charges' are related to expenditure incurred on amount paid to CA for tax audit, cost of TDS filing to Accountants, cost of stamp paper, cost paid to Excise consultants, court expenses, miscellaneous expenditure etc. Out of these expenses, only the amount paid as legal expenditure to individual advocates or a firm of advocates is chargeable to service tax under RCM. The CA fees, statutory fees etc. are not amount paid to Advocates or firm of Advocates for legal services. 4.4.1 It has been held in the impugned order that the appellant failed to provide in support of Rs.58,670/- as expenses not incurred for advocates or firm of advocates for legal services and therefore held the value of Legal and professional charges as mentioned in expenditure side of Profit & Loss A/c to be taxable under RCM. 4.4.2 It is observed that the expenses mentioned under head of 'Legal & Professional charges' have been held to be taxable under RCM treating the same as expenses towards legal charges paid to Advocates & Group of A....
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....ing certain other services from different service provider which they have put under the category of Loading and Unloading Charges, Pole shifting and stacking services. When the services are received from two different sources how can the same been clubbed under the category of GTA services as composite service. The entire case of the revenue is based creating a composite service of GTA by including these charges while determining the taxable value. Appellant is not providing GTA service to their customers PVVNL, but are manufacturing and selling the PCC Poles to their customers, which they deliver to their customer at the location specified by the customer. For delivering the PCC poles, appellant recover the charges on per pole basis dependent upon the distance. Whether these charges need to be added to the assessable value for payment of Central Excise duty is not the question before me. But the question which I am concerned is whether these services can be said to be composite service received by the appellant for determination of the taxable value for payment of service tax under the category of GTA services. I do not find any merits in the order holding so, as when the service....
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....king charges". It is also not the case of revenue that the charges in respect of these service received by the appellant were paid to GTA. Not even a single invoice to this effect has been produced or relied upon by the revenue in entire proceedings. Hence I do not find any merits in this demand. Professional and Legal Services: 4.5 Appellant ahs admitted the part demand to the extent of Rs 3181/- along with the interest of Rs 573/- during the course of investigation and prior to issuance of Show Cause Notice. 4.6 They have challenged the remaining demand of Rs 8216/- (Rs 11,397-Rs 3,181/-). While challenging the said demand they have stated that the expenditure which has been shown in the profit and loss account, is inclusive of the expenditure incurred on the purchase of stamp papers, CA for tax audit, cost of TDS filing to Accountants, excise consultants. 4.7 Notification 30/2012-ST dated 20.06.2012 provides for payment of service tax on reverse charge basis by the recipient of the services in certain cases as specified in the said notification. The relevant excerpt of the said notification is reproduced below: GSR ......(E).-In exercise of the powers ....