2016 (4) TMI 200 - AT - Service Tax

Demand of Service tax - Custom House Agent Services (CHA) and Business Auxiliary Services (BSA) - Taxable value adopted by the appellant for the purpose of payment of service tax was not in accordance with the provisions of Section 67 of the Finance Act, 1994 - Assesse paid service tax only on the income accounted as Service Income leaving the income under Transportation Income and Brokerage Income etc., disclosed them by suppressing the facts with an intention to evade payment of service tax - Held that - while considering the waiver of pre-deposit, this Tribunal discussed the issue at length to decide the quantum of deposit and ordered full payment of service tax on CHA and BAS. The quantum of service tax payable on the differential value of CHA services is arrived at 10% of the total invoice value. Accordingly, this Bench directed the appellant to make pre-deposit of ₹ 12.00 lakhs i.e. the entire amount of service tax demanded under the head BAS service for the period 03-04 to 06-07 and on the CHA service of ₹ 64.00 Lakhs (being 10% of the value on which tax has been demanded). The appellants are not contesting the service tax on 10% of the value of CHA services on the invoice value and service tax on the BAS service. Accordingly, the demand confirmed under CHA service on the value of about ₹ 64 lakhs (being 10% value on the invoice) is liable to be upheld. Similarly, the demand of service tax under BAS service on the value of ₹ 67,46,030/- lakhs is also liable to be upheld. Demand of Service tax - Reimbursable expenses by CHA - Held that - the issue already stands settle by the Tribunal in the case of D.S. Narayana & Co. Pvt. Ltd. Vs. CCE, Visak 2015 (11) TMI 1110 - CESTAT BANGALORE and Aashita International Ltd. Vs. CST, Ahmedabad 2013 (12) TMI 797 - CESTAT AHMEDABAD and by relying on the Hon ble Delhi High Court judgment in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. Vs. UOI 2012 (12) TMI 150 - DELHI HIGH COURT , set aside the service tax demand of reimbursable expenses. Also by following the ratio of above decisions, the total demand in excess of 10% is related to reimbursable expenses and the same is not liable to service tax. Imposition of penalty - Section 76 & 78 of the Act - Held that - by considering the overall circumstances of the case and also considering the issue relates to interpretation of statute and levy of service tax whether reimbursable expenses are taxable or not, which was agitated before various appellate forums and finally the Hon ble Delhi High Court in the Intercontinental Consultant s case settled the issue, therefore, this is a bonafide belief on the appellant s on leviability of service tax on reimbursable expenses and also considering the fact that the appellants are registered with the Service Tax department and paid service tax regularly under the CHA services, the imposition of penalty is not sustainable. Accordingly, the penalties imposed under Section 76 & 78 of the Act are set aside. - Decided partly in favour of appellant

Summary

Issues involved:
Demand of service tax on Custom House Agent (CHA) services and Business Auxiliary Services (BAS), applicability of penalties under Section 76 & 78 of the Act, treatment of reimbursable expenses in service tax calculations.

Analysis:

1. Demand of service tax on CHA and BAS services:
The case involved an appeal against an Order-in-Original passed by the Commissioner of Service Tax, Chennai, demanding service tax of Rs. 1,12,38,567/- for the period from 2002-03 to 2006-07. The appellant was providing CHA and BAS services and had paid service tax only on the income accounted as Service Income, omitting income under other heads. The Tribunal found that the appellant failed to pay service tax on various components like brokerage received, transportation income, and other charges. The Tribunal directed the appellant to make a pre-deposit and upheld the demand for service tax on the value of CHA and BAS services.

2. Treatment of reimbursable expenses:
The adjudicating authority demanded service tax on reimbursed expenses by the CHA, which were incurred on behalf of the service recipient. However, recent judgments and decisions by the Tribunal and High Court clarified that reimbursable expenses are not liable to service tax. Following this precedent, the Tribunal set aside the demand for service tax on reimbursable expenses exceeding 10%.

3. Applicability of penalties under Section 76 & 78:
The appellant contested the imposition of penalties under Section 76 & 78, arguing that there was no malafide intent to evade payment of service tax. The Tribunal considered the circumstances, including the interpretation of the statute regarding reimbursable expenses, and concluded that the penalties were not sustainable. Therefore, the penalties under Section 76 & 78 were set aside.

In conclusion, the Tribunal upheld the demand for service tax on the value of CHA and BAS services, set aside the demand for service tax on reimbursable expenses exceeding 10%, and annulled the penalties imposed under Section 76 & 78. The appeal was partly allowed based on the above terms.