2019 (4) TMI 127 - AT - Service Tax

Short payment of service tax - non-inclusion of an amount of ₹ 13,82,406/- in the total taxable value for the returns filed for the year 2010 11 - re-imbursable expenses - Held that - It is settled law that reimbursable expenses cannot be subject to levy of service tax during the disputed period - From the records, it is seen that the appellants have raised a contention that they have discharged the service tax on the value of ₹ 10,14,593/- which was the amount after exclusion of reimbursable expenses. So even though it is stated to be expenses and costs incurred for providing services, the appellant admits that the amount raised in the Show Cause Notice includes certain amount which is not reimbursable expenses and has to be included in the taxable value. Taking note of this aspect and also the request of the appellant seeking for an opportunity to furnish evidences to establish their case, it is deemed fit to remand the matter to the adjudicating authority for reconsideration of the issue. Penalty u/s 76 - Held that - The issue is wholly interpretational one, the appellant has put forward reasonable cause for not paying service tax. This is a fit case for invocation of section 80. Therefore, penalty under section 76 is set aside. Appeal allowed in part and part matter on remand.

Issues:
1. Demand confirmation based on Rule 5(1) of Service Tax (Determination of Value) Rules, 2006.
2. Discrepancy in taxable values and service charges collected.
3. Imposition of penalty under section 76 of Finance Act, 1994.
4. Appellant's contention on reimbursable expenses and service tax discharge.
5. Request for setting aside penalty under section 76.

Analysis:
1. The judgment involves the confirmation of demand under Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, which was challenged by the appellant citing the decision of the Hon'ble Supreme Court in a specific case. The Tribunal acknowledged the appellant's argument and remanded the matter to the adjudicating authority for reconsideration, emphasizing that reimbursable expenses cannot be subject to service tax, as per the Supreme Court's decision.

2. The discrepancy between the taxable values in the returns and the service charges collected was noted during an audit, leading to a show cause notice for demanding short-paid service tax. The Tribunal considered the appellant's submission regarding the exclusion of reimbursable expenses and the need for further evidence. The matter was remanded for the adjudicating authority to determine if the amount in question falls under reimbursable expenses or not.

3. The imposition of penalty under section 76 of the Finance Act, 1994 was contested by the appellant, arguing that they had discharged service tax on the amount they believed was not reimbursable expenses. The Tribunal, considering the interpretational nature of the issue and the appellant's reasonable cause for non-payment, set aside the penalty invoking section 80, citing a relevant High Court case supporting the waiver of penalties in similar circumstances.

4. The appellant's contention on reimbursable expenses and service tax discharge was a focal point of the appeal. The Tribunal recognized the complexity of the issue and the appellant's request for an opportunity to prove their case before the lower authority. The judgment highlighted the appellant's argument that certain amounts were not reimbursable expenses and should be included in the taxable value, necessitating a reevaluation by the adjudicating authority.

5. The request for setting aside the penalty under section 76 was granted by the Tribunal, considering the appellant's argument, the interpretational nature of the issue, and the invocation of section 80 due to a reasonable cause for non-payment. The judgment referenced a relevant High Court case to support the decision to waive the penalty in this case.

This detailed analysis of the judgment covers all the issues involved comprehensively, outlining the Tribunal's considerations and decisions on each aspect raised in the appeal.

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