TaxTMI 
TaxTMI 
2026 (3) TMI 747
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....otal amounting Rs. 10,99,756/-(Rs. Ten Lakh Ninety Nine Thousand Seven Hundred and Fifty Six only) inclusive of Cess for the financial year 2016-17, under the proviso to Section 73(1) of the Finance Act, 1994 read with Section 174 of the CGST Act, 2017. I drop rest of the demand of Rs.22,33,494/- as proposed in the show cause notice. ii. I confirm the demand and recovery of interest, at the appropriate rate, on the said confirmed amount, under the provisions of Section 75 of the Finance Act, 1994. iii. I impose penalty of Rs.10,99,756/-(Rs. Ten Lakh Ninety Nine Thousand Seven Hundred and Fifty Six only) upon the said party under the provisions of Section 78 of the Finance Act, 1994 read with Section 174 of CGST Act 2017. However, in view of clause (ii) of the second proviso to Section 78(1), if the amount of Service Tax confirmed and interest thereon is paid within thirty days from the date of receipt of this order, the penalty shall be twenty-five percent of the said amount, subject to the condition that the amount of such reduced penalty is also paid within the said period of thirty days. iv. I impose a penalty of Rs.10,000/- [Rupees Ten thousand only] ....
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....74 of the CGST Act, 2017. (v) Penalty should not be imposed upon them under Section 77(1) of the Finance Act, 1994 read with Section 142(8) and Section 174 of the CGST Act, 2017 for not maintaining the proper records." 2.5 Appellant vide letter dated 24.12.2021 replied to the show cause notice and attended the personal hearing when called for. 2.6 The said show cause notice was adjudicated as per the Order-in-Original dated 19.12.2022 referred in para 1.2 above. 2.7 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been disposed of as per the impugned order referred in para-1 above. 2.8 Aggrieved appellant have filed this appeal. 3.1 I have heard Shri Madhukar Anand, Consultant for the appellant and Shri A.K. Choudhary, Authorized Representative for the revenue. 3.2 Arguing for the appellant Consultant submits that- • It is seen that the demand in the present case has been made by invoking the extended period of limitation. However, the demand for previous period on the same issue was dropped vide Order-in-Original No.01/AC/CGST/Div-II/GZB/2023-24 dated 30.08.2023. This order has been accepted, as....
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....mentioned that if this was Indeed an expenditure Incurred by the party, and was subsequently reimbursed by the client, then it should've been recorded under the expense side of the Balance sheet/Profit and Loss account statement, whereas, the AA has observed that this is not the case. 5.3 At the time of hearing held on 28.02.2024 the party has submitted the following documents: (i) copy of the Balance Sheet for the year 2016-17, which shows gross receipts of Rs 2,22,21,665/-; (ii) Ledger account of M/s Bhole Nath Freight Carrier, maintained by the client of the party M/ Sheela Foam Limited for the financial year 2016-17; and (iii) Form 26AS of Shri Devendar Singh (Proprietor of M/s Bhole Nath Freight Carrier) PAN- BGZPS8855H. 5.4 On perusal of the ledger mentioned above, it is observed that there are certain entries which show that toll tax expense is being reimbursed by the client of the party. Having observed this, I also notice that the ledger submitted is a photocopy and is not accompanied by any kind of forwarding letter of the client of the party (M/s Sheela Foam Limited). I find no contract/agreement or correspondence between ....
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....52,515 Sheela Foam Ltd- Reimbursement of toll tax and challan 72,65,169 13,41,241 Sugam Parivahan Pvt. Ltd. 6800 6800 Misc. Freight charges received 59,737 2,22,21,665/- 1,62,45,300/- 4.4 I also find that for the period 2015-16 a similar demand was made from the appellant vide show cause notice dated 09.04.2021 asking them to show cause as to why:- i. The amount of Service Tax Rs.23,00,907/- (including ECess/ SBC) should not be demanded and recovered from them under proviso to section 73(1) of Finance Act, 1994 read with Section 142(8) and Section 174 of the CGST Act 2017; ii. Interest on the above amount should not be demanded and recovered from them under Section 75 of the Finance Act, 1994 read with Section 142(8) and Section 174 of the CGST Act 2017. iii. Penalty should not be imposed upon them under Section 78 of the Finance Act, 1994 read with Section 142(8) and Section 174 of the CGST Act 2017 as they have not disclosed true detail of services provided by them to the department with intent to evade payment of service tax as discussed supra. iv. Penalty should not be imposed u....
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.... in the instant case, under the provisions of aforesaid RCM Notification No.30/2012-ST dtd.20.06.2012, 100% service tax liability was to be on M/s Sheela Foam Ltd.. From the above, I find that the GTA service receiver Lie. M/s Sheela Foam Ltd. fell under the above said six categories. I also carefully gone through the certificate issued by the consignee of the party i.e. M/s Sheela Foam Ltd. and observed that they have declared that service tax liability against GTA services provided by the party is discharged by them. Therefore, the party was not liable to pay service tax in respect of GTA service provided to such GTA service receivers who had to discharge the service tax liability at their end. vi. From the foregoing facts and inters of above findings, I hold that no Service Tax liability on the party and therefore demand of Rs.23,00,907/-(including Cesses) so raised in the SCN, is liable to be dropped and no penalty is liable to be imposed under Section 78 of the Finance Act, 1994 for not showing true details of services provided and deposit particulars. vii. Further regarding the issue of chargeability of interest, I note that the provisions of Sectio....
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....ppellant. 4.7 I find merits in the submissions of the appellant that service tax could not have been levied on the green tax and the penalty charges. The demand made in respect of these charges could not be sustained as per the Circular No.152/3/2012 dated 22.02.2012 issued by the Board. The relevant paras of the said circular is reproduced below:- "2). Service tax is not leviable on toll paid by the users of roads, including those roads constructed by a Special Purpose Vehicle (SPV) created under an agreement between National Highway Authority of India (NHAI) or a State Authority and the concessionaire (Public Private Partnership Model, Build-Own/Operate-Transfer arrangement). 'Tolls' is a matter enumerated (serial number 59) in List-II (State List), in the Seventh Schedule of the Constitution of India and the same is not covered by any of the taxable services at present. Tolls collected under the PPP model by the SPV is collection on own account and not on behalf of the person who has made the land available for construction of the road." 4.8 Even otherwise these amounts were received from the appellant as reimbursable expenses from the service recipi....