2018 (4) TMI 1242 - AT - Service Tax

GTA service - composite agreement - The claim of the appellant is that as per agreement, the transportation, packing, loading and unloading services are separate, for which independent charges were recovered - Held that - Tribunal in the case of Jain Carrying Corporation V/s CCE, Jaipur 2014-TIOL-3069-CESTAT-DEL observed that where in the composite agreement, services are mentioned differently then each service will have to be charged separately for the purpose of Service Tax - The Tribunal observed that when by the composite agreement, three different services were awarded to the appellant then admittedly, the services falling under different Clauses separate. But fact remains these judgments were delivered before the date when the negative list came into existence i.e. 1st July, 2012. Hence by following the ratio laid down in the above mentioned cases we uphold that prior to 01/07/2012 the services, though mentioned in a composite agreement, will have to be treated differently as they were mentioned separately and along with the table of the charges - After 01/7/2012 the issue will have to be examined afresh by the adjudicating authority but by providing reasonable opportunity to the appellant. Valuation - reimbursement of bill expenses - Held that - In the show cause notice, the service tax was demanded on reimbursable expenses under Rule 5(1) of the Service Tax (Determination Value) Rules, 2006 from the Appellant. But fact remains that Rule 5(1) has been assailed before the Hon ble Supreme Court in the case of Union of India and Anr V/s M/s Intercontinental Consultants and Technocrats Pvt. Ltd. 2018-TIOL-76-SC where the said Rule was declared ultra vires to the Section 67 of the Finance Act, 1994 - When the said provision has been declared ultra vires then no demand can be raised - demand set aside. Utilisation of CENVAT credit - credit utilised for payment of Service Tax - Held that - the authority will have to examine the genuineness of the Cenvat Credit of ₹ 3.71 Cr. Only. In this regard, it is evident that Service Tax on storage and warehousing charges was being paid prior to VCES period and also declared and paid during VCES period through declaration, which has been held as correct in the impugned order - penalty also not leviable. Personal penalty on Directors - Held that - When the service tax liability is remanded then the question of levy of the personal penalty on the directors is also remanded to the adjudicating authority for adjudication. Appeal allowed in part.

Summary

Issues:
1. Composite agreement for storage and warehouse services.
2. Taxability of reimbursable expenses under Service Tax rules.
3. Allowance of Cenvat Credit for payment of Service Tax.

Analysis:

1. The appeal was filed against an Order-in-Original concerning a composite agreement for storage and warehouse services. The appellant claimed that transportation, packing, loading, and unloading services were separate with independent charges. However, the Adjudicating Authority considered it a composite agreement, requiring the appellant to pay service tax on all combined services. The Tribunal referred to previous judgments and upheld that services mentioned separately in a composite agreement before July 1, 2012, should be treated individually. Post this date, a fresh examination was advised with a reasonable opportunity for the appellant.

2. Regarding reimbursable expenses, the demand for service tax was set aside as Rule 5(1) was declared ultra vires by the Supreme Court. The appellant's claim was allowed based on this ruling.

3. The issue of Cenvat Credit utilization for payment of Service Tax was addressed. The lower authorities had not allowed the credit claimed by the appellant. The Tribunal upheld the decision that the availment of Cenvat credit was not the subject matter of the case. The adjudicating authority was directed to examine the genuineness of the Cenvat Credit claimed by the appellant. The Tribunal also noted that penalties might not be leviable if the tax, along with interest, was paid before the issue of a show cause notice, citing relevant case laws.

4. Consequently, the impugned order was modified, and the appeals were partly allowed. The Tribunal remanded the service tax liability and the question of personal penalties on directors to the adjudicating authority for further examination in line with the observations made.

This detailed analysis of the judgment provides a comprehensive overview of the issues addressed and the Tribunal's decisions on each matter, maintaining the legal terminology and key points from the original text.