2010 (6) TMI 285 - AT - Service Tax

Clearing and forwarding services - the appellant was rendering clearing and forwarding services to their customer and that certain expenses incurred by the former had been recovered from the latter. The case of the revenue is that these expenses which were reimbursed by their customer were also to be added to the taxable value of clearing and forwarding services under section 67 of the Finance Act, 1994. Circular No. 119/13/2009-ST, dated 21.12.2009 indicates that even in department circles, view which prevailed during material period was against inclusion of reimbursement charges in taxable value of taxable services. Held that - assesese had made out a prima facie case for waiver of pre deposit of amount.

Summary

Issues:
Waiver of pre-deposit and stay of recovery in a service tax case involving alleged suppression of facts by the assessee.

Analysis:
The appellant sought waiver of pre-deposit and stay of recovery for a service tax demand of Rs. 58,91,811 and an equal penalty amount. The demand was confirmed for the period from April 2001 to August 2005 based on a show-cause notice invoking the extended period of limitation due to alleged suppression of facts. The revenue contended that certain expenses reimbursed by the customer to the appellant should have been included in the taxable value of clearing and forwarding services under section 67 of the Finance Act, 1994. The appellant disputed this, citing conflicting decisions and a referral to a Larger Bench regarding the inclusion of reimbursed expenses in taxable value for service tax levy. The appellant also referenced a Kerala High Court judgment and a circular of the Board supporting their position that the department's view during the disputed period favored the assessee. The ld. counsel argued against the invocation of the extended period of limitation for recovering the differential tax amount.

The ld. SDR for the revenue referred to the provisions of section 35F of the Central Excise Act and the corresponding provisions of the Customs Act, emphasizing the aspect of 'undue hardship' and the interest of revenue safeguarding. Citing a Supreme Court decision, the ld. SDR highlighted that 'undue' hardship implies excessive hardship greater than warranted by circumstances. It was contended that the appellant did not face such hardship, thus not warranting waiver and stay relief.

Upon examination, the Tribunal found the appellant's submissions weightier in the given circumstances. Noting that the issue was referred to a Larger Bench and considering the Kerala High Court's stance on heavily arguable cases, the Tribunal acknowledged the case as one where the entire service tax demand fell outside the normal period, with the extended limitation period invoked due to alleged suppression of facts. The Tribunal also considered the circular indicating the prevailing view against including reimbursable charges in taxable value during the disputed period. Consequently, the Tribunal found a prima facie case for waiver of pre-deposit and stay of recovery for the service tax and penalty amount, ordering accordingly.