2021 (2) TMI 564 - AT - Service Tax

Valuation - scope of the term 'consideration' - inclusion of cost of free supply diesel made by M/s ONGC in the value of taxable service for running the drilling vessel - HELD THAT - The period of dispute involved in this case is from December 2010 to December 2015. The provisions of valuation of taxable services for charging service tax are contained in Section 67 ibid. The said statutory provision has defined the term consideration , to include any amount that is payable for the taxable services provided or to be provided for provision of taxable service. Section 67 ibid was amended by the Finance Act, 2015 (20 of 2015), w.e.f. 14.05.2015. The effect of amendment was that subclauses (ii) and (iii) were inserted in clause (a) in the definition of consideration contained in the explanation part appended to Section 67 ibid. The amended provisions include inter alia, any reimbursable expenditure or cost incurred by the service provider and charged, in the course of providing or agreeing to provide a taxable service, subject to the fulfilment of the prescribed conditions. In the present case, it is an admitted fact on record that the appellant had never charged any cost of fuel to M/s. ONGC over and above the amount claimed by it for providing the taxable service. Since, M/s. ONGC was not required to make payment of fuel to the appellant, its value cannot be added to the taxable value both under the un-amended and amended provisions of Section 67 ibid - Further, the appellant herein had received the entire consideration for provision of service in monetary terms. Hence, it cannot be said that it was not properly able to determine the value of taxable service, in order to attract the provisions of Rule 3 (b) of the Service Tax (Determination of Value) Rules, 2006. Similarly, the provisions of Rule 5 ibid also would not attract in this case inasmuch as no cost of fuel was charged or billed by the appellant to the recipient of service. Appeal allowed - decided in favor of appellant.

Summary

Issues:
- Whether the appellant correctly excluded the cost of free supply diesel from the taxable service value.

Analysis:

1. The case involved the appellant providing mining services to ONGC by chartering its vessel and receiving diesel for drilling operations. The department claimed the cost of diesel should be part of the taxable value for service tax. The appellant argued that as ONGC did not pay for the fuel, its value should not be included in the taxable value.

2. The appellant's advocate cited relevant judgments to support their position, emphasizing that free supplies by the service recipient should not be included in the taxable value. The Revenue representative supported the department's decision.

3. The Tribunal analyzed the agreement and facts, noting that ONGC provided fuel free of cost, which the department acknowledged. The dispute spanned December 2010 to December 2015, falling under Section 67 of the Finance Act, 1994.

4. Section 67 defines 'consideration' as any amount payable for taxable services. The amendment in 2015 included reimbursable costs incurred by the service provider. As the appellant did not charge ONGC for fuel, its value should not be added to the taxable value.

5. The Tribunal referred to the Supreme Court judgment in a similar case, emphasizing that the gross amount charged by the service provider should have a nexus with the service provided. Free supplies by the recipient should not be part of the taxable value.

6. Based on the analysis and legal principles, the Tribunal found no merit in the department's order. The impugned order was set aside, and the appeal was allowed in favor of the appellant.

7. The judgment was pronounced in the open court on 12.02.2021, with detailed reasoning provided for excluding the cost of free supply diesel from the taxable service value.