2019 (4) TMI 1692 - AT - Service Tax

Valuation - inclusion of reimbursable expenses received by the service provider in assessable value - Rule 5(1) of Service Tax (determination of value) Rules, 2006 - HELD THAT - The rule itself has been struck down by the Hon ble Apex Court as ultra vires in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. 2018 (3) TMI 357 - SUPREME COURT OF INDIA and the issue is now finally settled that service tax can only be charged on the amount received for the services and not on the reimbursable expenses - the impugned order which is based on such demand is not sustainable and is liable to be set aside - the demand of interest and penalties also do not survive. Appeal allowed - decided in favor of appellant.

Summary

Issues: Service tax on reimbursable expenses, validity of Rule 5(1) of Service Tax (Determination of value) Rules, 2006, applicability of the decision in the case of Union of India Vs Intercontinental Consultants & Technocrats Pvt Ltd [2018 (10) GSTL 401 (SC)], limitation period for raising demand, imposition of penalty.

Analysis:
1. Service Tax on Reimbursable Expenses: The appellant, a Clearing & Forwarding Agent, had entered into an agreement with Marico Ltd for services, including reimbursement of expenses. The department issued a show cause notice alleging that these reimbursable expenses should be included in the gross amount charged for service tax purposes. The appellant contended that reimbursable expenses should not be considered as part of the gross amount charged. The Tribunal noted that the Hon'ble Supreme Court had struck down Rule 5(1) of the Service Tax (Determination of value) Rules, 2006, which included reimbursable expenses in the taxable amount. Consequently, the demand based on such inclusion was deemed unsustainable, leading to the dismissal of the demand, interest, and penalties.

2. Validity of Rule 5(1) of Service Tax Rules: The Tribunal referred to the Supreme Court's decision in the case of Union of India Vs Intercontinental Consultants & Technocrats Pvt Ltd, where it was held that Rule 5(1) was ultra vires to Sec.67 of the Finance Act, 1994. This decision clarified that service tax should only be levied on the gross amount charged for services, excluding reimbursable expenses. Therefore, the Tribunal concluded that the demand made based on Rule 5(1) was not sustainable and set aside the impugned order.

3. Limitation and Penalty: The appellant had also raised the issue of limitation, arguing that the department was aware of the arrangement with Marico, and hence, the extended period of limitation could not be invoked. However, the Tribunal did not delve into this aspect as the primary issue of including reimbursable expenses in the taxable amount was sufficient to set aside the demand. The Tribunal's decision to reject the revenue's appeal and allow the assessee's appeal was based on the core issue of the invalidity of including reimbursable expenses in the gross amount charged for service tax purposes.

In conclusion, the Tribunal's judgment in this case centered around the inapplicability of Rule 5(1) of the Service Tax (Determination of value) Rules, 2006, following the Supreme Court's decision. The decision clarified that service tax should only be levied on the amount received for services, excluding reimbursable expenses. The Tribunal set aside the demand, interest, and penalties, emphasizing the importance of adhering to the legal framework in determining taxable amounts for service tax purposes.