2008 (2) TMI 48 - AT - Service Tax

OIO rejected refund claim & appropriated the tax paid by the party in the category of Man Power Recruiting Agency towards the tax which ought to have been paid in the category of Security Agency impugned order sustainable as amount payable by assessee can be adjusted against amount refundable (collected wrongly) Sec 67(v) didn t provide abatement of such expenses reimbursable or wages of employees so Security Agency is required to pay ST on gross amount charged by it from its client

Summary

Issues:

1. Refund claim for service tax paid in the wrong category.
2. Demand of service tax for a specific period and related penalties.

Issue 1: Refund claim for service tax paid in the wrong category

The case involved a dispute regarding the refund claim by M/s. Sudharson Security Bureau (SSB) for service tax paid in the wrong category from 16-10-1998 to 30-9-1999. Despite being registered as a 'Security Agency' from 22-11-1999, M/s. SSB continued to pay service tax as a 'Man Power Recruiting Agency' during the mentioned period. The original authority rejected the refund claim for the period prior to 16-10-1998 as time-barred. However, the Commissioner (Appeals) allowed the refund claim for the period prior to 16-10-1998, directing the lower authority to refund the tax subject to verification for unjust enrichment. The Appellate Tribunal CESTAT, Chennai, dismissed the appeal against the rejection of the refund claim for the period 16-10-1998 to 30-9-1999. The Tribunal held that the tax amount paid in the wrong category was liable to be refunded under Section 11 of the Central Excise Act, as applicable to service tax matters. The appropriation of the tax towards the correct category was deemed lawful, and the appeal was dismissed.

Issue 2: Demand of service tax for a specific period and related penalties

The second part of the case involved a demand of service tax amounting to Rs.1,08,781/- for the period 16-10-1998 to 31-5-2000, along with proposed penalties under Sections 76 and 78 of the Finance Act, 1994. The demand was based on the inclusion of employees' wages and other reimbursable expenses in the taxable value of service, which M/s. SSB contested. The original authority confirmed the demand and imposed penalties, which were later set aside by the first appellate authority. The Tribunal noted that the circulars cited by the appellants did not pertain to security agencies and held that service tax for a 'Security Agency' should be based on the gross amount charged to clients. The Tribunal referred to a previous decision and upheld the demand of service tax, dismissing the appeal. Additionally, the Tribunal found no plea of limitation in the memorandum of appeal, further supporting the dismissal of the appeal against the demand of service tax.

In conclusion, the Appellate Tribunal CESTAT, Chennai, resolved the issues related to refund claims and service tax demands in a detailed manner, emphasizing the correct application of tax laws and relevant circulars. The judgment provided clarity on the obligations of the taxpayer regarding service tax payments and the consequences of paying taxes in the wrong category.