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Sparsha Logistics V/S CCT, Hyderabad G.S.T.


Company & Directors' Information:- E-LOGISTICS PRIVATE LIMITED [Active] CIN = U63011TN2000PTC046210

Company & Directors' Information:- C & C LOGISTICS LIMITED. [Strike Off] CIN = U63090DL2011PLC221415

Company & Directors' Information:- G S LOGISTICS PRIVATE LIMITED [Active] CIN = U63011DL2004PTC129217

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- V LOGISTICS (INDIA) PRIVATE LIMITED [Active] CIN = U63090MH2003PTC139384

Company & Directors' Information:- X LOGISTICS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U63090MH2010PTC205666

Company & Directors' Information:- S P LOGISTICS PRIVATE LIMITED [Active] CIN = U63030MH2003PTC142519

Company & Directors' Information:- GST LOGISTICS PRIVATE LIMITED [Active] CIN = U74120MH2015PTC264528

Company & Directors' Information:- V-LOGISTICS PRIVATE LIMITED [Strike Off] CIN = U62200TN2009PTC070829

    Appeal No. ST/30405/2018 (Order-in-Appeal No. HYD-SVTAX-HYD-APP-106/17-18 (APP-I)), ST/30406/2018 (Order-in-Appeal No. HYD-SVTAX-HYD-APP-108/17-18 (APP-I)) and Final Order Nos. A/30672-30673/2018

    Decided On, 03 July 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench Hyderabad

    By, THE HONORABLE JUSTICE: P.V. SUBBA RAO
    By, MEMBER

    For Petitioner: P. Rosi Reddy, Advocate And For Respondents: P.S. Reddy, Assistant Commissioner/DR



Judgment Text


1. These two appeals in respect of two sister firms are on the same issue and hence are being disposed of together.

2. The issue in brief is that the appellants are providers of clearing and forwarding agent services and are registered with the Service Tax department for providing these services. They have been paying service tax on the services. Based on the intelligence, an investigation was conducted by the departmental officers and they verified the ST-3 returns filed by the appellants with their Profit and Loss Accounts and found that the appellants have not declared the full value of the services rendered by them and have also not discharged their full service tax liability. When this was pointed out, the appellants paid the differential service tax as calculated by them along with interest which was different from the amounts calculated by the departmental officers.

3. Thereafter show cause notices were issued proposing to recover the differential service tax along with interest and also proposing to impose penalties under Sec. 78 and 77. The original authority had confirmed the demands and also imposed the penalties on the appellants.

4. Aggrieved, the appellants approached the Commissioner (Appeals) who rejected their appeals and upheld the Order-in-Original. The current appeals are against these Orders of the Commissioner (Appeals).

5. During personal hearing, the Learned Counsel for the appellants submitted that they have been paying service tax as applicable but evidently, there was some mistake resulting in under payment of the service tax. The departmental officers had taken the value of their services from their own Profit and Loss Accounts and sought to charge the tax accordingly. In the case of Sparsha Logistics, the total differential value calculated by the department was Rs. 40,74,805/- for the period 2011 Oct to end of 2015-16. The service tax thereon was reckoned as Rs. 4,83,408/-. The appellants are not disputing that the income received as shown in the Profit and Loss accounts is in excess of what was declared in the ST-3 returns. However, the income shown in the Profit and Loss accounts is inclusive of the service tax amount. Therefore, the value of the service tax has to be deducted and the differential value of services rendered and tax payable should be reckoned. If done so, the differential tax works out to Rs. 1,50,439/- only. Corresponding figures for Sanjeevani Logistics India Pvt. Ltd. were service tax demanded by the department was Rs. 3,92,665/-, while the service tax calculated by the appellant is Rs. 1,19,201/-. In support of their claim, the Learned Counsel for the appellants produced extracts of the Profit and Loss accounts for the relevant periods. I have gone through them. On the right hand side of the Profit and Loss statements, they have receipts recorded as "By Service receipts" and on the left hand side, they had the expenses including their profit and the service tax amount. The right hand side amount matches with the left hand side amount. Thus it is evident that the service receipts indicated in the profit and loss account includes all their costs including the service tax and the net profit. I also find that the receipts shown in the Profit and Loss accounts are the same amounts which are taken by the department as the value of services rendered (in the Profit and Loss accounts/form 26-AS). The appellants had, in fact, raised this issue before the Learned Commissioner (Appeals) also who did not agree with their contentions in the following words:

"The appellants have also not produced any relevant invoices during the appellate proceedings. No prior submissions or evidences like copies of agreements, invoices have been furnished in support of their claim of reduced tax or to prove their entitlement to the benefit of cum-tax valuation in terms of Sec. 67(2) of the Act, 1944. Even assuming that they were eligible for cum-tax valuation, I find that such relief cannot be granted in as much as actual value of service could not be met relying only on Profit and Loss statements as the same itself would not be a verifiable statement in the absence of any other documentary evidence like agreements and ledgers."
6. The Learned Departmental Representative, on the other hand reiterated the arguments made in the Order-in-Original and Order-in-Appeal and said that the appellant is not entitled to the benefit of calculation of the amounts shown in the Profit and Loss accounts being taken as cum-tax amounts as they have not produced any ledgers or other evidence to substantiate their claims.

7. I have considered arguments on both sides and perused the records. I find that the assessees were paying service tax and filing ST-3 returns. However, during investigation by the departmental officers they found that there was a difference between the value of service charges reflected in their profit and loss accounts and the value declared in their ST-3 returns. The amount in the Profit and Loss accounts was higher and hence, the entire show cause notice and demand was based on the profit and loss accounts. Having relied on the profit and loss accounts to compute the differential tax liability, the departmental officers cannot brush aside some elements of the same profit and loss statements which are not convenient and consider only the other elements to fasten the liability on the appellant. Profit and Loss statements produced before me show the amounts indicated in the show cause notice as the values of services rendered and also show the corresponding breakup on the other side. The breakup shows the various components in which the amounts received were divided. These include various forms of expenses incurred by them with respect to those services as well as their profit and the service tax amounts. A plain reading of the Profit and Loss statement shows that the service tax receipts shown therein are inclusive of the service tax. I do not agree with the learned Commissioner (Appeals) that any additional evidence in the form of ledgers or invoices is required to prove that the value shown in the Profit and Loss statements is inclusive of the service tax element because the very statement says so. In fact it is tha

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t very statement which forms the basis for the show cause notice. I, therefore, find that the assessees are eligible for calculation of the differential tax reckoning the amounts shown in the Profit and Loss statements as inclusive of service tax. The demand of differential duty gets reduced correspondingly and so does any mandatory penalty imposed on them. I, therefore, find it a fit case to remand these cases to the original authority and do so. 8. I remand the cases to the original authority to recalculate the differential duty payable and penalty, taking the amounts shown in the Profit and Loss statements as service charges and also the corresponding service tax indicated therein.
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