2019 (7) TMI 1801 - AT - Service Tax

Levy of service tax - pure agent services or not - technical inspection and certification service - commercial training and coaching service - validity of rule 5 (1) of Service Tax (Determination of Value) Rules, 2006 - ultra vires of the provisions of section 67 of Finance Act, 1994 or not - HELD THAT - It is seen from the impugned order that the adjudicating authority has confirmed the demand on the finding that the agreement referred to in rule 5(2) of Service Tax (Determination of Value) Rules, 2006 is not available and that the impugned expenditure were incurred for effective provision of service. The proposal in the show cause notice, and the non-acceptance of claim to be pure agent , as envisaged in rule 5(2) of Service Tax (Determination of Value) Rules, 2006 which serves to qualify exclusion from rule 5 (1) of the said Rules were based on the prescriptions that have been judicially erased. It is seen that rule 5(1) of the said Rules is a deeming provision for enhancement of the taxable value by including expenditure incurred for providing taxable service but charged separately, and not as consideration, from the recipient of service. The expenses that are under dispute were charged, and collected, independent of the consideration, from the recipient of service. Other than referring to the inclusions mandated by rule 5(1) of Service Tax (Determination of Value) Rules, 2006, there are no evaluation of the several expenditures as being indispensable for rendering of the service by the appellant - appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Liability to tax under section 73 of Finance Act, 1994 for technical inspection and certification service and commercial training and coaching service.
2. Interpretation of rule 5(1) of Service Tax (Determination of Value) Rules, 2006 regarding reimbursable expenses.
3. Application of section 67 of Finance Act, 1994 in determining taxable value of services.

Analysis:
1. The appellant contested the liability to tax under section 73 of Finance Act, 1994 for technical inspection and certification service and commercial training and coaching service. The appellant relied on the decision of the Hon'ble Supreme Court in a similar case and argued that the Tribunal had followed this decision in a previous case. The dispute revolved around the expenditure incurred between April 2006 and March 2010, which the appellant claimed were not included in the taxable value of services.

2. The Authorized Representative argued that the terms of payment were explicitly incorporated in the contract, including reimbursements for facilities and conveniences. The adjudicating authority confirmed the demand based on the absence of the agreement referred to in rule 5(2) of Service Tax (Determination of Value) Rules, 2006. The issue centered on whether the impugned expenditure was incurred for the effective provision of service and the eligibility for exclusion as a 'pure agent' under rule 5(2) of the said Rules.

3. The Tribunal analyzed the provisions of rule 5(1) of Service Tax (Determination of Value) Rules, 2006 in light of the Hon'ble Supreme Court's decision in a related case. The Tribunal highlighted that reimbursable expenses charged separately from the consideration were not part of the taxable value of services. The Tribunal referred to the legislative amendments to section 67 of Finance Act, 1994, emphasizing that reimbursable expenses were included in the valuation of taxable services only from a specific date, making it prospective in nature. The Tribunal concluded that the expenses under dispute, charged independent of consideration, should be considered as in pursuance of 'pure agency' and not liable to tax for the provision of service.

In conclusion, the Tribunal set aside the impugned order and allowed the appeal, emphasizing the importance of evaluating expenses in light of the legal provisions and judicial interpretations to determine the taxable value of services accurately.