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TMI Blog2013 (9) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectness of the earlier adjudication order and in para 28, confirmation of service tax, interest and penalty is recorded. Ld. Commissioner has wholly misconceived the limits of his jurisdiction pursuant to the specific order of remand passed by this Tribunal, vide the judgment dated 6.5.2011 and has tried to overreach and trench into the domain of this appellate authority. The impugned adjudication order is also wholly bereft of independent analysis and determination of the issues raised. Advance Payments - taxability – Advances received when service was taxable - Consultant Engineer Service - Levy of service tax on subcontract service when main contractor is payment service tax - Levy of service tax on reimbursement of expenses - expenses on behalf of client - Held that:- The adjudication order was unsustainable and was accordingly quashed - The matter was also remanded to the Commissioner, Service Tax for passing a fresh adjudication order, in strict compliance and fidelity to the earlier judgment of this Tribunal - Commissioner was directed to pass a de novo adjudication order - The Commissioner shall also issue a notice to the appellant affording an opportunity of perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. On the second aspect the appellant claimed that tax liability arises only on amounts received and not on bills raised. 6. On the third aspect, the appellant claimed that exemption under Notification No.12/2003-ST dated 20.6.2003 is available and there was no tax liability after availing the exemption, under the said Notification. 7. On the fourth aspect, relating to the tax demand of Rs.36 lakhs, the appellant had contended before this Tribunal that Rs.13 lakhs was an account of expenses incurred for getting soil tests done and as a pure agent of the clients; and that after issue of Notification No.12/2006-ST dated 19.4.06 notifying the Service Tax (Determination of Value) Rules, 2006, expenses incurred as a pure agent of clients would not be the taxable value of services. It was further contended that even prior to this date there were clarifications issued by the Board and for the earlier period also there was no justification to demand tax, on reimbursed expenses. The appellant had further pleaded that some of these reimbursements were in respect of agreements executed prior to 19.4.06 and therefore reimbursements though received later could not be taxed since this was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal, it is apparent that the appellant on 28.7.2011 had filed detailed written submission before the adjudicating authority, accompanied by supporting documents. These written submissions were acknowledged by the office of the adjudicating authority on 29.7.2011, nearly four months prior to the date of adjudication order. 10. The substantial grievance presented in this appeal is that the adjudicating authority in gross defiance of the specific and unambiguous directions of this Tribunal, proceeded to pass a flippant and laconic order in total abdication of quasi-judicial obligations and in defiance of the hierarchical discipline. It is also contended on behalf of the appellant that the impugned adjudication order is totally bereft of any analysis or recording of reasons and discloses a casual approach by the adjudicating authority. 11. Analysis of the impugned order: In the light of the contentions urged to impeach the adjudication order, we have perused the impugned order carefully. The adjudication order consists of 28 paragraphs running over 15 printed pages. Paragraphs 1 to 12 set out the preceding events namely, the earlier adjudication proceedings culminating in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service tax. The services provided by the noticee are 'taxable service' w.e.f. 07.07.1997 as per Section 65(105) (g) of the Act. The advances with the noticee as on 16.06.2005 for the 'taxable service' still to be provided were to form the part of 'value of taxable services' liable to the service tax which was to be discharged on or before 05.07.2005 which was not discharged by them on due date. I also find as the liability to pay service tax on the 'value of taxable services' was not discharged by the noticee on the due date, they are liable to pay interest under Section 75 of the Act which provide for mandatory charging of interest on delayed payment of service tax or any part thereof to the account of Central Government within the period prescribed. I also find that the contention of the noticee that in terms of amendments in Section 65(105), Section 67 and Rule 6 of the Rules, the liability to pay service tax on advances received against 'taxable services' to be provided will be effective only for the advances received on or after 16.06.2005 and not prior to that as also explained by the Finance Ministry in their letter F.No. B1/06/2005-TRU dated 27.07.2005 is not tenable inas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that Section 67 of the Act before 15.05.2005 prescribed that the value of any 'taxable service' shall be the gross amount charged by the service provider for such service rendered by him. I also find that such expenses claimed to be reimbursements were incurred by the noticee for providing the services to their clients and were directly relatable to the service rendered. It is immaterial if such expenses which were later on claimed to be reimbursements were incurred by the noticee on behalf of their clients during the course of providing services and were directly relatable to such services. The contention of the noticee that out of total amount of reimbursements on which service tax along with interest has been demanded certain amount relates to services provided by them as sub-consultant on which they are not liable to pay service tax in terms of department's circular and trade notices. For this contention the noticee has also relied upon certain judgments cited in their reply to Show Cause Notice. However, I find that a sub-contractor is essentially a taxable service provider. The fact that the services provided by such sub-contractor are used by the main service provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d some flaw in the earlier adjudication order dated 1.2.2010, but surprisingly "without any request either by the departmental representative or by the representative of the assessee, the CESTAT remanded for fresh adjudication". 15. We find no precedent for the ld. Commissioner to have passed strictures against the Tribunal nor any authority for such brazen insubordination to the appellate jurisdiction and without comprehension of the limitation of his jurisdiction and the limits of his authority. In para 23, in further refutation of the judgment of this Tribunal, the adjudicating authority now holds that the earlier adjudication order was a well reasoned and a just and legal order, again overruling this Tribunal's judgment. The impugned order also concludes that no evidence is emerging from the discussion, and the allegations leveled in the show cause notice were categorically discussed in the earlier adjudication order, passed by his 'learned' predecessor. In para 25, the adjudicating authority reaffirms the findings in the earlier adjudication order, with regard to suppression of material facts with an intent to evade payment of service tax. Paragraphs 26 and 27 reaffirm the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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