2017 (4) TMI 100 - AT - Service Tax

Valuation - reimbursable expenses to be included in gross value or not? - Held that - The law provides that for the purpose of calculating the service tax gross value of service has to be taken in to account. This includes the consideration received before during or after the service. The costs of expenditure or the amount reimbursed to the clients are not allowed to be deducted or excluded except in the case of pure agent - Admittedly appellants are no pure agents and Commissioner (Appeals) has also given finding that appellants did not claim themselves to be a pure agent nor did they produce any evidence for fulfillment of conditions necessary for being a pure agent - Section 67 is clear and unambiguous that all the expenses incurred in relation to rendition of service have to be included in the gross taxable value. The extended period has been correctly imposed as the law was clear and unambiguous. Non-inclusion of part of taxable value in such a situation is a positive act of suppression and misdeclaration of value in their ST-3 returns - penalty also rightly imposed. Appeal dismissed - decided against assessee.

Summary

Issues Involved:
- Calculation of service tax on total amount realized from customers
- Exclusion of expenditures from the value of taxable service
- Applicability of extended period for tax payment
- Imposition of penalty for non-inclusion of taxable value

Analysis:
1. Calculation of Service Tax on Total Amount Realized: The appellant, a Customs House Agent, had not paid service tax on the total amount realized from customers. The law mandates considering the gross value of service for tax calculation, including all consideration received before, during, or after the service. The exclusion of reimbursement and commission as taxable value was found incorrect, as only pure agents are allowed such exclusions. The appellant failed to prove themselves as pure agents, leading to the confirmation of demand by the Commissioner (Appeals).

2. Exclusion of Expenditures from Taxable Value: The appellant argued for the exclusion of certain expenditures from the taxable value, citing a case law precedent. However, the Tribunal differentiated the present case from the precedent, emphasizing that all expenses related to service rendition must be included in the gross taxable value as per Section 67 of the Finance Act, 1994. The appellant's failure to demonstrate their status as a pure agent or provide evidence led to the rejection of their claim for exclusion.

3. Applicability of Extended Period: The Tribunal upheld the imposition of the extended period for tax payment, considering the clear and unambiguous nature of the law. The non-inclusion of part of the taxable value was viewed as a deliberate act of suppression and misdeclaration in the ST-3 returns, justifying the application of the extended period for assessment.

4. Imposition of Penalty: The penalty imposed on the appellant was deemed appropriate due to the deliberate non-inclusion of taxable value, which was considered a positive act of suppression. The Tribunal found no fault with the order of the Commissioner (Appeals) and upheld the penalty along with the confirmation of the demand for service tax.

In conclusion, the Tribunal dismissed the appellant's appeal, affirming the decision of the Commissioner (Appeals) regarding the calculation of service tax, exclusion of expenditures, applicability of the extended period, and imposition of the penalty. The judgment highlighted the importance of complying with tax laws and including all relevant expenses in the taxable value of services provided.