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TMI Blog2022 (8) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... will alone be liable to Service tax and no any other notional amount will be added on assumption and presumption basis. It is found from the agreement entered into between Respondent and M/s ESTIL that it was evident that the charges for cargo handling and port services were negotiated rates, on the understanding that 25 million MT of cargo would be handled from 2012-13 onwards and that there would be a 3% escalation on the agreed base rate. The agreement inter alia envisaged that M/s EBTIL would maintain a minimum of 10-meter draft, in the channel leading to the bulk terminal and that if that draft was increased from 10 to 12 meters it would be entitled to a fee escalation of Rs. 21/per MT in respect of the raw materials handled by the respondent - there are no force in the department s contention that respondent has not included the value of facility charges in the related taxable service charges. Time Limitation - suppression of facts or not - HELD THAT:- The respondent have correctly made full and true disclosure of the value consideration of the service provided by them. There is no column in the ST-3 return form to declare any notional value which is not the part o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any other persons in terms of provisions of Rule 3(a) of the Service tax (Determination of Value) Rule, 2006. Therefore, Show Cause Notice dated 22.09.2015 was issued demanding Service tax along with interest and penalty. Further, a periodical show cause notice dtd. 17.03.2016 was also issued. After due process, both the show cause notices were adjudicated by the adjudicating authority vide impugned order dtd. 19.01.2017. He dropped the proceedings initiated against Respondent. Being aggrieved by the said Order-In-Original Revenue filed this appeal. 02. Shri Ghanshyam Soni, Learned Authorised Representative appearing on behalf of Revenue reiterating the grounds of appeal submits that Ld. Commissioner has not dealt-with the issue as to how the facility charges are held to have already been included in the uniform rate agreed between respondent and M/s ESTIL., especially when no evidence has been placed on record to support the case that such facility charges have already been included in the agreed uniform rate. 2.1 He also submits that the assessment to Service tax is based on the value of taxable services arrived in terms of Section 67 of the Finance Act , 1994. From the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Cola 2017 (213) ELT 490 (SC) Commissioner Vs. Textile Corporation 2008(231) ELT 195 (SC) Nirlon Ltd. Vs. Commissioner 2013(320)ELT 22 (SC) (b) The demand is also not sustainable on limitation. All the relevant facts were always in the knowledge of the department as successive EA-2000 Audit of its records were conducted in March 2011, June July 2012 wherein copies of the agreements between M/s ESTIL and the Respondent were duly furnished. In view of this the very basis on which suppression have been alleged, does not survive and the extended period could not be invoked. In view of this, the entire demand is time barred. He placed reliance on the decisions in the case of CCE Vs. Pragati Concrete Products 2015-TIOL-223-SC-CX. 04. Heard both sides and perused the records. We find that the issue to be decided in this case is that when facility charges charged by the respondent from other customers but not from M/s ESTIL, the same is included in gross value of service provided by them to M/s ESTIL. 4.1 We noticed that the entire case of the department is on the presumption that the respondent have not recovered facility charges from M/s ESTIL whereas they r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it was evident that the charges for cargo handling and port services were negotiated rates, on the understanding that 25 million MT of cargo would be handled from 2012-13 onwards and that there would be a 3% escalation on the agreed base rate. The agreement inter alia envisaged that M/s EBTIL would maintain a minimum of 10-meter draft, in the channel leading to the bulk terminal and that if that draft was increased from 10 to 12 meters it would be entitled to a fee escalation of Rs. 21/per MT in respect of the raw materials handled by the respondent. We agree with the contention of the respondent that alleged charges are already taken into consideration while arriving at combined uniform rate. In this context we would also refer to Explanation to clause 2 of Rule 5 of Service tax (Determination of Value) Rules, 2006 which clarifies that the value of taxable services is the total amount of consideration consisting of all components of the taxable service and it is immaterial that the details of individual components of the total consideration is indicated separately in the invoice. Therefore we don t find any force in the department s contention that respondent has not included t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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