2010 (9) TMI 665 - AT - Service Tax

Waiver of pre-deposit - Cargo Handling Services - The applicants herein, who are engaged in providing Cargo Handling Services are incurring expenditure on account of Terminal Handling Charges, Customs MOT charges, Demurrage Charges, PSA Wharfage and FCA, which are reimbursed by their clients - The applicants are acting as pure agents and, therefore, the costs incurred by them are excludible from the value of the taxable services in terms of Rule 5 of the Service Tax (Determination of Value) Rules, 2006 - In the absence of a written agency contract/agency agreement with the clients is not sufficient for inclusion of the reimbursable expenditure in the value of taxable service - Waive pre-deposit of and stay recovery thereof pending the appeal. Waiver of pre-deposit - Input credit - As regards the balance amount the input service for which tax was paid, was an exempted service, namely, Handling of Export Cargo Service , the fact remains that the tax has been paid - The applicants cannot be called upon to pay - Waive pre-deposit together with interest and penalty, and stay recovery .

Summary

Issues:
1. Application for waiver of pre-deposit of service tax on reimbursable expenditure.
2. Exclusion of reimbursable expenditure from the value of taxable services.
3. Treatment of input service as an exempted service.
4. Waiver of pre-deposit of CENVAT credit availed, interest, and penalty.

Analysis:
1. The judgment dealt with an application for waiver of pre-deposit of service tax on reimbursable expenditure and CENVAT credit availed, along with interest and penalty. The applicants, engaged in providing "Cargo Handling Services," incurred various charges reimbursed by clients. The tribunal found that the applicants acted as pure agents, paying on behalf of clients and getting reimbursed. The absence of a written agency contract was not sufficient for inclusion of reimbursable expenditure in the taxable service value. Thus, the tribunal waived pre-deposit of Rs. 3,68,758 on reimbursable expenditure pending appeal.

2. Regarding the balance amount of CENVAT credit availed for an exempted service, the tribunal noted that although the service was exempted, tax had been paid. Consequently, the applicants were not liable to pay the amount of Rs. 15,74,141 again. Therefore, the tribunal also waived pre-deposit of this amount, along with interest and penalty, pending the appeal. The judgment emphasized the importance of distinguishing between taxable and reimbursable expenditure in determining the service tax liability.

3. The tribunal's decision highlighted the significance of Rule 5 of the Service Tax (Determination of Value) Rules, 2006, in excluding costs incurred by pure agents from the value of taxable services. The judgment underscored that the nature of the expenditure, being reimbursable and incurred on behalf of clients, justified the waiver of pre-deposit. Additionally, the tribunal considered the implications of paying tax for an exempted service and reiterated that double taxation should be avoided.

4. In conclusion, the tribunal granted the waiver of pre-deposit for both the reimbursable expenditure and the CENVAT credit availed, emphasizing the applicants' role as pure agents and the prior payment of tax for an exempted service. The judgment provided clarity on the treatment of such expenditures and credits in service tax matters, ensuring fairness and adherence to relevant rules and regulations.