2008 (2) TMI 26 - AT - Service Tax

Services by foreign service provider SCN has actually invoked liability on the service provided by Consulting Engineer service it does not refer to any other service such as Chartered Accountant Service, Commercial Training Service, etc. Therefore demand is beyond the scope of SCN out of pocket expenses DGFT and Board have clarified that out of pocket expenses reimbursed on actual basis are not includable in the value of the Service Tax interest and penalty can t be levied

Summary

Issues:
1. Dispute over Service Tax demand on services of a foreign consultant.
2. Applicability of Service Tax on different services beyond the scope of show cause notice.
3. Interpretation of the show cause notice and relevant case laws.
4. Treatment of "out of pocket expenses" in Service Tax liability.
5. Decision on the appeal against the Order-in-Appeal.

Analysis:
The appeal before the Appellate Tribunal CESTAT Bangalore involved a dispute regarding the Service Tax demand on services provided by a foreign consultant. The Revenue alleged that the appellants did not discharge the correct Service Tax liability for availing the services. The show cause notice proposed a demand of Service Tax amounting to Rs. 43,03,321, out of which Rs. 3,44,266 was demanded. The appellants had already paid Rs. 2,62,982 before the issuance of the show cause notice, leaving a balance of Rs. 81,284. The Adjudicating Authority confirmed this demand, which was upheld by the Appellate Authority, leading the appellants to appeal to the Tribunal.

During the proceedings, the appellant disputed the balance Service Tax demand of Rs. 81,284, arguing that the demand went beyond the scope of the show cause notice. The main contention was that the show cause notice specifically mentioned demand under "Consulting Engineer's Service," whereas the demand included Service Tax on various other services, including "out of pocket" reimbursable amounts. The Commissioner (A) justified the demand by stating that the notice was not restricted to any particular service but aimed to demand duty on services provided by a foreign service provider. However, the Tribunal found that the demand indeed exceeded the scope of the show cause notice, as it specifically invoked liability only on "Consulting Engineer" services and not other services.

The Tribunal considered relevant case laws, such as Siemens Ltd. Vs. CST, Volvo India Ltd. Vs. CST, and Waters India Pvt. Ltd. Vs. CST, which established that Service Tax is payable only on services conforming to the alleged service in the show cause notice. Additionally, the treatment of "out of pocket expenses" in Service Tax liability was discussed, with references to clarifications by DGFT and the Board stating that such expenses reimbursed on an actual basis are not includable in the value of Service Tax. Relying on these precedents and clarifications, the Tribunal concluded that the demand of Rs. 81,284 was not sustainable, leading to the allowance of the appeal with consequential relief.

In the final decision, the Tribunal ruled in favor of the appellant, stating that no interest or penalty could be levied due to the unsustainable nature of the Service Tax demand. The appeal was allowed with consequential relief, and the operative portion of the order was pronounced in open court at the conclusion of the hearing.