2024 (9) TMI 551 - AT - Service Tax

Non-payment of Service tax - Recovery of certain expenditures from their service recipient and the amount collected by the appellant from their service recipient have not been included under the taxable value for the purpose of payment of Service Tax - invocation of extended period of limitation - HELD THAT - The appellant have recovered certain reimbursement expenditure which have been made by them for transport of goods on behalf of their principals namely M/s. Adani Willmar Limited. It is also matter of record that the charges with regard to the C and F agent service received by the appellant have already been declared by them in their ST-3 returns and on the same due amount of the Service Tax had already been paid. It was held by learned Commissioner (Appeals) while rejecting the appeal of the appellants that ' The appellant has received extra amount than the amount from their clients towards providing of various services and hence cannot be termed as pure agent as per Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and hence all such value are required to be included in the value for the purpose of charging service Tax on the said services and hence is required to discharge the Service Tax liability accordingly'. The logic adopted by the learned Commissioner (Appeal) in his above mentioned findings is legally not sustainable as Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. in its order dated 30.04.2012 2012 (12) TMI 150 - DELHI HIGH COURT have held that Rule 5 (1) of the Service Tax Valuation Rules is contrary to the provision of Section 67 of the Finance Act, 1994 and thus has been declared Rule 5(1) as ultra virus. The transportation charges reimbursed to the appellant by their principals are on actual basis of the amount incurred by them on transportation of goods on behalf of their principals as pure agent and same are not includable in the taxable value of services for the appellant. The impugned Order-In-Appeal is without any merit and is set aside - appeal allowed.

Issues Involved:
1. Demand of Service Tax on reimbursement charges.
2. Applicability of Rule 5 of the Service Tax (Determination of Value) Rules, 2006.
3. Liability of the appellant as a pure agent.
4. Invocation of extended period of limitation under Section 73 of the Finance Act, 1994.
5. Imposition of interest and penalties under Sections 75, 77, and 78 of the Finance Act, 1994.

Issue 1: Demand of Service Tax on reimbursement charges

The department issued a show cause notice on 10.04.2014 demanding Service Tax of Rs. 8,60,866/- for the period April 2008 to March 2013. The demand was based on the suspicion that the appellant had recovered certain expenditures from their service recipients, which were not included in the taxable value for Service Tax purposes. The appellant argued that the Service Tax was demanded on the reimbursement charges collected for transportation of goods undertaken on behalf of their principals, M/s. Adani Willmar Limited. The appellant contended that the transportation activity is separately taxable under 'Goods Transport Agency Service' and the liability to pay Service Tax on this service lies with the recipient on a reverse charge basis.

Issue 2: Applicability of Rule 5 of the Service Tax (Determination of Value) Rules, 2006

The Commissioner (Appeals) held that the appellant did not declare the amount charged as a pure agent in the ST-3 returns. According to Rule 5 of the Service Tax (Determination of Value) Rules, 2006, the appellant could not be termed as a pure agent and was liable to pay Service Tax on the entire gross amount charged and recovered. The Commissioner (Appeals) concluded that the appellant received more than the actual expenditure incurred towards labor and transport charges, and thus, all such reimbursement should be included in the taxable value.

Issue 3: Liability of the appellant as a pure agent

The Tribunal found that the appellant recovered reimbursement expenditure for the transport of goods on behalf of their principals. The appellant had declared charges related to the C&F agent service in their ST-3 returns and paid the due Service Tax. The Tribunal referred to the case of Intercontinental Consultants and Technocrats Pvt. Ltd., where the Delhi High Court held that Rule 5(1) of the Service Tax Valuation Rules was contrary to Section 67 of the Finance Act, 1994, and declared it ultra vires. The Tribunal also cited the case of M/s. Cosmos Clearing Agencies, where it was held that reimbursable amounts should not be included in the gross value for Service Tax purposes.

Issue 4: Invocation of extended period of limitation under Section 73 of the Finance Act, 1994

The Commissioner (Appeals) upheld the adjudicating authority's decision to recover the amount of Rs. 8,60,866/- by invoking the extended period of limitation. The Commissioner (Appeals) found that the appellant suppressed material facts and failed to discharge their Service Tax liability. However, the Tribunal concluded that the logic adopted by the Commissioner (Appeals) was not legally sustainable, as the higher courts had already decided on similar matters.

Issue 5: Imposition of interest and penalties under Sections 75, 77, and 78 of the Finance Act, 1994

The Commissioner (Appeals) justified the imposition of penalties under Sections 77 and 78 of the Finance Act, 1994, and did not interfere with the adjudicating authority's order. However, the Tribunal set aside the impugned Order-In-Appeal, holding that the transportation charges reimbursed to the appellant by their principals were on an actual basis and not includable in the taxable value of services. The Tribunal allowed the appeal in favor of the appellant, setting aside the impugned order and ruling that the appellant was not liable for the demanded Service Tax, interest, and penalties.

Conclusion:

The appeal was allowed, and the impugned Order-In-Appeal was set aside. The Tribunal held that the transportation charges reimbursed to the appellant by their principals were not includable in the taxable value of services, and the appellant was not liable for the demanded Service Tax, interest, and penalties.

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