2017 (4) TMI 558 - AT - Service Tax

Valuation - Clearing & Forwarding Agency Services - inclusion of re-imbursement of the actual expenditure - Extended period of limitation - Held that - The agreement did not specifically list all such expenditures and in the absence of such categorical stipulation, a general observation regarding mandatory ceiling of re-imbursement by itself cannot be taken as a support for excluding a portion of the value on the ground that these are re-imbursable expenditure - decided against the assessee. Extended period of limitation - Held that - there has been a large number of litigation and clarification, with reference to valuation of C & F Agency Service. - it is not tenable to hold that this is a fit case for invoking extended period alleging fraud, collusion, willful mis-statement or suppression of facts. As such, we hold that the service tax liability, as confirmed by the impugned order, shall be restricted to normal period. The penalties imposed on the appellants are also set aside.

Summary

Issues: Valuation of taxable service; Exclusion of re-imbursable expenditure from taxable value; Time bar of demand; Penalties imposition

In this case, the appellants were providing "Clearing and Forwarding Agency Service" to a pharmaceutical company. The dispute centered around the valuation of the taxable service rendered by the appellant between October 1999 and September 2004. The appellant claimed exclusions from the gross amount, arguing that certain expenses were re-imbursable subject to a ceiling paid by the client. The Revenue, however, contended that the gross value received from the client should be subject to tax under the relevant service category. The appellant's counsel emphasized that the amounts in question were towards reimbursement of actual expenses incurred while providing services and should not be added to the taxable value. The appellant also pleaded for the demand to be time-barred due to previous litigation on the valuation issue and requested the setting aside of penalties, citing no malafide intent.

The Appellate Tribunal found that while the contract mentioned a mandatory ceiling for reimbursement of expenses, it did not specify the types or amounts of expenses to be incurred by the appellant on behalf of the clients. Without clear stipulations in the agreement, the Tribunal held that a general observation about the mandatory ceiling alone was insufficient to support excluding a portion of the value as re-imbursable expenditure. The Tribunal stressed the importance of factual evidence to support such claims and noted that legal principles could not be applied unless factually supported by the agreement. The agreement should have explicitly listed and demonstrated the re-imbursable expenses to be excluded.

Regarding the time limit issue, the Tribunal agreed with the appellant that there had been significant litigation and clarifications on the valuation of the service in question. The Tribunal highlighted that the impugned order relied on a rule that was not applicable to the relevant period and had been invalidated by the Delhi High Court. Consequently, the Tribunal ruled that it was not justifiable to invoke an extended period for alleging fraud, collusion, willful misstatement, or suppression of facts. Therefore, the service tax liability confirmed in the impugned order was restricted to the normal period, and the penalties imposed on the appellants were set aside. The appeal was disposed of accordingly.