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TMI Blog2020 (7) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... ging service tax - This view has been expressed by Supreme Court in Union of India vs. Intercontinental Consultants and Technocrats Pvt Ltd. [ 2018 (3) TMI 357 - SUPREME COURT ] . Demand on an amount of 4,39,65,823/- received by the appellant for using its own truck for providing transportation service to the principal companies for which it was working as Clearing and Forwarding agent - HELD THAT:- The records indicate that the service recipients such as M/s. Hindustan Unilever Ltd. have confirmed payment of service tax on the transportation of goods service provided by the appellant. However, this needs to be verified after detailed examination of the books of accounts and service tax return filed by the service recipient. Thus, this factual position should be examined by the Adjudicating Authority on the basis of records. Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1994. The penal provisions as provided under section 76, section 77 and section 78 of the Finance Act, 1994 have also been invoked in the show cause notice. 4. The matter got adjudicated by the Commissioner vide Order-in-Original dated 25 January, 2016. The Adjudicating Authority accepted the contention of the appellant that an amount of ₹ 11,16,86,641/- was received by the appellant during the period 2007-2008 to 2011-2012 on account of freight paid by the appellant on behalf of his principal companies and the same was reimbursed to them by the service recipients. 5. The Adjudicating Authority, after detailed examination, confirmed service tax amounting to ₹ 59,32,070/- and the balance demand of ₹ 1,31,96,056/- was dropped on the ground that same pertains to freight reimbursement on which Service Tax stands paid. The below mentioned Table taken from the impugned Order-in-Original makes it apparent as to how the above decision was reached by the Adjudicating Authority : Service Tax Calculation Chart Amount (in Rs.) Year Gross Receipt Freight paid & Reimbursement received as per P&L account Net receipt Receipts against C&F service on which tax alre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal companies for using its own trucks for transportation of goods in the local areas. It has vehemently been contended by the learned advocate that service tax is not payable on the charges received by the appellant for using its own truck. It has further been mentioned that profit and loss account of the appellant mentioned it very categorically that the above mentioned amount was received by it again as reimbursement of the expenses incurred by it for providing 'Goods Transport Agency service' using its own vehicle. It has been contended by the learned advocate that the principal companies namely, M/s. Hindustan Unilever Limited, M/s. Berger Paints India Ltd., M/s. L G Electronics India Pvt. Ltd. and M/s. Moser Baer India Ltd. have discharged their service tax liability upon this amount also under 'Goods Transport Agency service'. The learned advocate has taken us through the certificate issued by M/s. Hindustan Unilever Limited on 05 May, 2016 where the details of freight charges and service tax amount have been indicated. The certificate indicates that the service recipient namely, M/s Hindustan Unilever Limited has discharged the service tax liability for freight charges pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not for providing such taxable service cannot a part of that valuation as that amount is not calculated for providing such 'taxable service'. That according to us is the plain meaning which is to be attached to Section 67 (unamended, i.e., prior to May 1, 2006) or after its amendment, with effect from, May 1, 2006. Once this interpretation is to be given to Section 67, it hardly needs to be emphasised that Rule 5 of the Rules went much beyond the mandate of Section 67. We, therefore, find that High Court was right in interpreting Sections 66 and 67 to say that in the valuation of taxable service, the value of taxable service shall be the gross amount charged by the service provider 'for such service' and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. 29. In the present case, the aforesaid view gets strengthened from the manner in which the Legislature itself acted. Realising that Section 67, dealing with valuation of taxable services, does not include reimbursable expenses for providing such service, the Legislature amended by Finance Act, 2015 with effect from May 14, 2015, whereby Clause (a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [(1870) LR 6 QB 1] , a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. The obvious basis of the principle against retrospectivity is the 29. principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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