2022 (11) TMI 1544 - AT - Service Tax

Non-payment of service tax on reimbursable expenses incurred on behalf of customers - Seeking recovery of the service tax amount along with interest and for imposition of penalties - HELD THAT - Challenging the vires of sub-rule (1) of Rule 5 ibid M/s. InterContinental Consultants and Technocrats Pvt. Ltd. 2012 (12) TMI 150 - DELHI HIGH COURT before the Hon ble Delhi High Court which was disposed off vide judgment dated 30.11.2012 in declaring such Rule 5 as ultra vires. It has been ruled by the Hon ble High Court that both under the un-amended and amended provisions of Section 67 ibid the charge of service tax under Section 66 ibid has to be on the value of taxable service i.e. the value of service rendered by the assessee and nothing more. The Hon ble High Court further observed in the said judgment that the expenditure or cost incurred by the service provider in the course of providing the taxable service can never be considered as the gross amount charged by the service provider for such service provided by him. The impugned order is set aside and the appeal is allowed in favour of the appellant.

Summary

The Appellate Tribunal considered the case of a Licensed Customs House Agent who did not pay service tax on reimbursable expenses incurred on behalf of customers, leading to show cause proceedings initiated by the department. The Tribunal analyzed the provisions of Section 67 of the Finance Act, 1994, and Rule 5 of the Service Tax (Determination of Value) Rules, 2006. The adjudicating authority had included the costs incurred by the appellant in the value of taxable services, rejecting the appellant's claim as a 'pure agent.' The Tribunal referred to a judgment by the Delhi High Court declaring Rule 5 as ultra vires and a subsequent Supreme Court judgment upholding this decision. The Tribunal noted that the department had dropped similar demands in the appellant's subsequent period based on the court judgments. Consequently, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant.The core legal issues considered by the Tribunal include the interpretation of Section 67 of the Finance Act, 1994, and Rule 5 of the Service Tax (Determination of Value) Rules, 2006, in the context of including reimbursable expenses in the value of taxable services for service tax purposes. The Tribunal examined whether the appellant qualified as a 'pure agent' and the impact of relevant court judgments on the case.The Tribunal analyzed the legal framework provided by Section 67 of the Finance Act, 1994, which governs the valuation of taxable services for service tax purposes. It also considered Rule 5 of the Service Tax (Determination of Value) Rules, 2006, which addresses the inclusion or exclusion of expenditure or costs in the value of taxable services. The Tribunal referenced a judgment by the Delhi High Court and a subsequent Supreme Court decision that declared Rule 5 as ultra vires and emphasized that service tax should be charged based on the value of services rendered by the assessee.In its reasoning, the Tribunal highlighted that the department had dropped similar demands in the appellant's subsequent period based on the court judgments. The Tribunal concluded that the impugned order, which confirmed the demands on the appellant, lacked merit in light of the legal principles established by the court judgments. Therefore, the Tribunal set aside the impugned order and allowed the appeal in favor of the appellant.The significant holdings of the Tribunal include the reliance on court judgments declaring Rule 5 as ultra vires and emphasizing that service tax should be charged based on the value of services rendered. The Tribunal's final determination was to set aside the impugned order and allow the appeal in favor of the appellant.