2014 (8) TMI 455 - AT - Service Tax

Business Auxiliary Service and C&F service - Assessee not paying service tax on the gross amount received and were under reporting the valued of the taxable service in their ST-3 returns - whether certain expenses reimbursed to them by their principal are includible in their assessable value or not - Held that - Appellant provide C&F agent s service. This issue stands decided against the appellant by the Larger Bench of the Tribunal vide its judgment in the case of Sri Bhagavathy Traders vs. CCE, Cochin (2011 (8) TMI 430 - CESTAT, BANGALORE). In view of this, the service tax was payable by the appellant on the gross amount of remuneration received by from their principals on the basis of the quantity of cement handled. Looking to the circumstances of the case, we find that extended limitation period has been correctly invoked and for the same reason, the penalty on them under Section 78 of the Finance Act, 1994 has been correctly imposed - Decided against assessee.

Summary

Issues:
Service tax liability on gross amount received by the appellant for C&F services, inclusion of certain expenses reimbursed in assessable value, invocation of extended limitation period, imposition of penalty under Section 78 of the Finance Act, 1994.

Analysis:
The appellant, a partnership firm, provided Business Auxiliary Service and C&F service, holding service tax registration for the period 2003-2004 to 2005-2006. The dispute arose concerning a contract with M/s J.P. Cement for transportation, loading, unloading, storage, and dispatch of cement. The Jurisdictional Deputy Commissioner confirmed a service tax demand of Rs. 2,42,468 against the appellant, citing underreporting in their returns and invoking the proviso to Section 73(1) of the Finance Act, 1994. The Commissioner (Appeals) upheld this order-in-original, leading to the current appeal.

In the absence of the appellant, the learned Jt. CDR referred to a Tribunal judgment regarding C&F Agent services, emphasizing the inclusion of reimbursed expenses in the assessable value unless a legal or contractual obligation exists for the service recipient to pay third parties. The Jt. CDR argued that the appellant's exclusion of certain reimbursement expenses led to service tax underpayment, justifying the extended limitation period and penalty under Section 78 of the Finance Act, 1994.

The Tribunal considered the submissions and records, concluding that the appellant's liability was on the gross remuneration received for C&F services, following the precedent set by the Larger Bench's judgment. As the extended limitation period was correctly invoked and the penalty under Section 78 was justified due to the appellant's actions, the impugned order was upheld, and the appeal was dismissed. The decision was pronounced in the open court, affirming the service tax liability and penalty imposed on the appellant for their C&F services.

This detailed analysis of the judgment highlights the issues of service tax liability, inclusion of reimbursed expenses, extended limitation period invocation, and penalty imposition under the Finance Act, 1994, providing a comprehensive overview of the legal proceedings and the Tribunal's decision.