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TMI Blog2011 (1) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the invoices is to be adopted as lumpsum amount and the taxable services are required to be taken as 15% of the lumpsum amount - the failure on the part of the appellant to substantiate the reimbursable expenses claimed on account of loss of documents, cannot be held to be reflected on any mala fide on their part and if the 15% of the exempted amount charged, resulting in less duty payment on them, there is no warrant in imposing penalty under Sections 76 and 78 of the Finance Act - Accordingly decided in the favour of the assessee X X X X Extracts X X X X X X X X Extracts X X X X ..... g the penalty from Rs. 10 lakhs to Rs. 24,28,925/-. The said order of the Commissioner is also impugned before us. 3. As the issue in both the appeals is interlinked, they are taken up together for disposal. The main issue to be decided is as to whether the service tax to be confirmed on the gross value charged by the CHA without giving any benefit of demand on actual expenses undertaken by them on behalf of their customers. The appellate authority has observed that as the appellants have not been able to prove the reimbursable expenses undertaken by them, the onus to prove is upon them. The benefit cannot be extended. Accordingly, he has confirmed the demand on the entire value. 4. The learned Advocate appearing on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in the invoices were found to be correct for the earlier period. The charges below could have accepted the appellants contention to levy service tax only on the agency charges reflected in the invoice. 6. In the alternative, learned Advocate draws out attention to the same circular issued by the Board laying down that where there is no separate break up in respect of the expenses, the value of the taxable services shall be 15% of the lumpsum gross charged to the customers. He submits that the lumpsum amount charged from them from the client is available in the invoice in which case, the Revenue should have adopted the other course of action laid down in the Circular. He submits that if 15% of the lumpsum amount charged by them fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incurred are not to be included for computing the service tax. 2.5 In many cases, the Customs House Agent undertakes 'turnkey' imports and exports where a lumpsum amount is charged from the client for undertaking various service. In these cases, the lumpsum amount covers not only the 'agency commission' fee but also other expenses and no separate break-up is given in respect of these expenses. It has been decided that in such cases, the value of the taxable service shall be 15% of the lumpsum amount charged TO THE CLIENT. The Customs House Agents are require to show the service charges at 15% of such lumpsum amount of the bills and service tax of 5% will be chargeable on the above 15%." 9. In view of the admission by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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