2018 (9) TMI 1442 - AT - Service Tax

Valuation - inclusion of value of the goods sold separately on which VAT paid, in the assessable value - Section 67 readwith Service Tax (Determination of Value) Rules, 2006 - Held that - The appellant s transaction with their customers consist of sale as well as service, which are clearly identifiable. Moreover, when the appellant pay Sales Tax/VAT on the consumables and spare parts used by them for servicing, that transaction would have to be considered as sale and, hence, the same cannot be made part of the value of the service. In identical issue was the subject matter of various decisions of the Tribunal, wherein stands held that the value of the goods sold separately on payment of VAT would not constitute part of the value of the services. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Disputed service tax liability on spare parts and consumables used in servicing.
2. Validity of the demand for service tax, interest, and penalties.
3. Interpretation of the provisions of Section 65 (105) and Section 65 (9) of the Finance Act, 1994.
4. Application of Service Tax (Determination of Value) Rules, 2006.
5. Benefit of exemption Notification No.12/2003-ST.
6. Precedent decisions of the Tribunal and High Court rulings on similar issues.

Issue 1: Disputed service tax liability on spare parts and consumables used in servicing:
The appellants, a dealer of two-wheeler motor vehicles, were found to be paying service tax only on the service charge component of the bills, not on the value of spare parts and consumables used in servicing. The Department contended that service tax should be paid on the gross amount charged, including the value of spare parts and consumables. The Tribunal analyzed the transaction between the appellants and their customers, noting that the invoices clearly separated the service component from the spare parts and consumables. It was held that the spare parts and consumables, on which Sales Tax/VAT was paid separately, should not be included in the assessable value of the service for service tax payment.

Issue 2: Validity of the demand for service tax, interest, and penalties:
A show cause notice was issued to the appellants demanding service tax along with interest and penalties under Section 76 and 78 of the Finance Act, 1994. The Commissioner confirmed the service tax demand and imposed penalties. The Tribunal found that since the spare parts and consumables were not to be included in the value of the service for service tax purposes, the demand for service tax, interest, and penalties was not valid. Therefore, the impugned order was set aside, and the appeal was allowed in favor of the appellants.

Issue 3: Interpretation of the provisions of Section 65 (105) and Section 65 (9) of the Finance Act, 1994:
The services provided by the appellants were taxable under Section 65 (105) (zo) read with Section 65 (9) of the Finance Act, 1994. The Tribunal's analysis focused on the clear separation of sale and service components in the appellants' transactions with customers, emphasizing that the spare parts and consumables used in servicing should not be considered part of the service value for service tax calculation purposes.

Issue 4: Application of Service Tax (Determination of Value) Rules, 2006:
The Tribunal referred to the Service Tax (Determination of Value) Rules, 2006, and concluded that the Revenue could not include the value of consumables in the value of the service when spare parts and consumables were separately accounted for and Sales Tax/VAT was paid on them. This interpretation was crucial in determining the correct assessable value for service tax calculation.

Issue 5: Benefit of exemption Notification No.12/2003-ST:
The Tribunal highlighted that the benefit of exemption under Notification No.12/2003-ST could not be denied when there was a clear separation of sale of goods (spare parts and consumables) and provision of services. As long as the conditions of the exemption Notification were met, the spare parts and consumables should not be included in the service value for service tax purposes.

Issue 6: Precedent decisions of the Tribunal and High Court rulings on similar issues:
The Tribunal cited various decisions where it was held that the value of goods sold separately, on which VAT was paid, should not be part of the value of services for service tax calculation. Additionally, a High Court ruling declared certain rules ultra vires, emphasizing that the Revenue cannot include the value of consumables in the service value. These precedents supported the Tribunal's decision to set aside the impugned order and allow the appeal in favor of the appellants.

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