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2021 (3) TMI 614 - AT - Service TaxValuation - inclusion in taxable services or not - expense incurred by the agents, namely, travel, conveyance and vehicle running expenses, training expenses, printing and stationary, and business development/marketing and sales promotion expenses - adjustment of service tax amount initially paid by the appellant under rule 2(1)(d)(iii) of Service Tax Rules, 1994 with the commission paid to the agents to be deposited under Section 73A(2) of the Finance Act, 1994. Whether the expense incurred by the agents, namely, travel, conveyance and vehicle running expenses, training expenses, printing and stationary, and business development/marketing and sales promotion expenses are to be part of the gross taxable value in discharging service tax by the appellant? - HELD THAT - The expenses incurred by the insurance agents are proposed to be included and under Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006 which was in force during the relevant time. The said Rule 5(1) has been struck down by the Hon ble Delhi High Court as ultra vires to Section 66 and 67 of Finance Act, 1994 and the said judgement has been upheld by the Hon ble Supreme Court in Intercontinental Consultants and Technocrats Pvt Ltd case 2018 (3) TMI 357 - SUPREME COURT - thus confirmation of demand by the adjudicating authority by including the reimbursable expenses in the gross taxable value cannot be sustained. Whether the service tax amount initially paid by the appellant under rule 2(1)(d)(iii) of Service Tax Rules, 1994 and later adjusted with the commission paid to the agents to be deposited under Section 73A(2) of the Finance Act, 1994? - HELD THAT - The issue has been addressed at length by this Tribunal in Bajaj Allianz Life Insurance Company Ltd 2019 (6) TMI 104 - CESTAT MUMBAI where this Tribunal held that The service tax initially paid by the Appellants and later collected from the insurance agents by adjusting the commission paid, cannot be directed to be deposited under Section 73A(2) of Finance Act, 1994. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Inclusion of reimbursed expenses in the gross taxable value for service tax. 2. Recovery of service tax paid under reverse charge mechanism from insurance agents under Section 73A(2) of the Finance Act, 1994. Issue-wise Detailed Analysis: 1. Inclusion of Reimbursed Expenses in Gross Taxable Value: The first issue pertains to whether expenses incurred by the insurance agents, such as travel, conveyance, vehicle running, training, printing, stationary, and business development/marketing and sales promotion expenses, should be included in the gross taxable value for discharging service tax by the appellant. The appellant argued that these reimbursed expenses should not be considered as amounts charged by the insurance agents for providing taxable services. They contended that these expenses are business expenses incurred by the appellant in furtherance of their business and should not be included in the gross taxable value. This argument was supported by the CBEC Circular dated August 1, 2002, and various judgments, including Rolex Logistics Private Ltd v. Commissioner of Service Tax, Bangalore, and Kirloskar Pneumatic Co Ltd v. Commissioner of Central Excise, Pune. The Tribunal referred to the judgment in Intercontinental Consultants and Technocrats Pvt Ltd v. Union of India & Ors, where Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006, which included reimbursed expenses in the gross amount charged, was held ultra vires to Sections 66 and 67 of the Finance Act, 1994. The Supreme Court upheld this view, stating that service tax is to be paid only on the services actually provided by the service provider, and not on reimbursable expenses. Therefore, the Tribunal concluded that the demand for including reimbursable expenses in the gross taxable value cannot be sustained, and the confirmation of demand by the adjudicating authority on this basis was set aside. 2. Recovery of Service Tax Paid Under Reverse Charge Mechanism: The second issue concerns whether the service tax initially paid by the appellant under the reverse charge mechanism and later adjusted with the commission paid to the insurance agents should be deposited under Section 73A(2) of the Finance Act, 1994. The appellant cited the Tribunal's decision in Bajaj Allianz Life Insurance Company Ltd v. Commissioner of Central Excise and Service Tax, Pune, where it was held that the service tax amount initially paid by the insurance company and later collected from the insurance agents by adjusting the commission amount cannot be directed to be deposited again under Section 73A(2). The Tribunal in the present case agreed with this precedent, stating that the service tax initially paid by the appellant and later adjusted with the commission paid to the insurance agents is not recoverable under Section 73A(2). Conclusion: The Tribunal found no merit in the impugned order and set it aside. The appeal was allowed with consequential relief as per law. The decision was pronounced in open court.
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