2009 (6) TMI 39 - AT - Service Tax

Clearing & Forwarding Agent - reimbursement expenses - During the adjudication proceedings the appellants submitted that there are 17 types of expenses incurred by them. The Commissioner, after examining the case, allowed reimbursement expenses in respect of 15 items. He has disallowed Misc. expenses and Misc. expenses of Business (Railway) and modified the demand of duty to Rs. 2,79,679/- and imposed penalty of equal amount under Section 78 of Finance Act, 1994 and penalty under Section 76 of the said Act In view of fact that the issue has been referred to larger bench in the matter of Amit Sales vs. CCE, Jaipur 2008 -TMI - 31349 - CESTAT NEW DELHI 2009 -TMI - 34009 - CESTAT, NEW DELHI , penalty set aside.

Summary

Issues:
1. Taxability of reimbursement expenses for 'Clearing & Forwarding Agent' services.
2. Imposition of penalty under Section 78 and Section 76 of the Finance Act, 1994.
3. Applicability of Section 80 of the Act.

Analysis:
1. The appellants provided 'Clearing & Forwarding Agent' services, and a show cause notice was issued proposing a tax demand, alleging that reimbursement expenses should be treated as agency commission and included in the taxable value. The Commissioner allowed reimbursement expenses for 15 items but disallowed Misc. expenses. The appellants did not contest the demand of duty, which they had already deposited. The advocate argued that imposition of penalty was unwarranted, citing a similar issue referred to the Larger Bench of the Tribunal. The Tribunal found that reimbursement of expenses for such services was not taxable, and the demand should have been verified before raising it. The Tribunal noted the absence of supporting records in the show cause notice and referred to a contrary decision on the eligibility of reimbursement expenses, indicating an interpretation of law issue. Consequently, the penalty was deemed unjustified, and the demand of duty was upheld while the penalty was set aside.

2. The Revenue contended that the appellants suppressed the taxable service value and failed to provide evidence for two expense items, justifying the imposition of penalty. However, the Tribunal found that the Commissioner had allowed reimbursement for most items after examining the documents. The Tribunal emphasized the need for proper verification before raising a demand and highlighted the absence of relevant records in the notice. It was concluded that the penalty was not warranted due to the interpretation of legal provisions and the contradictory Tribunal decisions regarding expense eligibility.

3. The advocate for the appellants argued that Section 80 of the Act should be applicable in the circumstances of the case. While the Tribunal did not explicitly address the applicability of Section 80 in the judgment, the decision to set aside the penalty indirectly considered the overall circumstances and legal provisions, leading to the conclusion that the penalty was not justified. The Tribunal's decision to uphold the demand of duty but set aside the penalty reflected a nuanced consideration of the legal and factual aspects of the case, balancing the tax liability with the penalty imposition based on the interpretation of the law and the specific circumstances presented during the proceedings.