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TMI Blog2024 (8) TMI 208X X X X Extracts X X X X X X X X Extracts X X X X ..... HNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] is sufficient to hold that demand is liable to be set aside the said demand. The above discussion also clarifies that the amount do not classify to be called as consideration. The case is no more res integra. It has been consistently held that value of amenities provide to CISF by the service recipient is not required to be included in the value of services. For the period prior to 30 June 2012, the services provided by CISF were covered under forward carge. With effect from 01 July, 2012, the services are covered under RCM vide Notification No.3/2012-ST dated 20.06.2012. For the services involving same facts, involving CIST, there have been judgements to the effect that value of infrastructure made available to CISF is not includible in the value of services. Extended period of limitation - HELD THAT:- The appellant is wrongly made liable for payment of the impugned amount of demand. There can be no reason with the appellant to not to pay the service tax liability with an intent to evade the duty - it was the incumbent duty of the department to prove the positive act of alleged fraud, suppression or wilful misstatement on part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposal has been confirmed vide the order under challenge. While adjudicating the said proposal the original adjudicating authority vide the impugned order, has confirmed the service tax demand for an amount of Rs.2,22,21,911/- with proportionate interest and the appropriate penalties on the said amount however the demand for an amount of Rs.1,45,61,845/- i.e the demand for the period prior 14.05.2015 has been dropped. 2. We have heard Shri Vikas Agarwal and Shri Manish Sachdeva, learned Chartered Accountant for the appellant and Shri Manoj Kumar, learned Authorized Representative for the department. 3. Learned counsel for the appellant has mentioned that the demand has wrongly been confirmed as has been passed without appreciating the factual and the legal possession in proper perspective. It is impressed upon that the appellant has discharged the service tax liability under RCM on the amount of consideration paid to the CISF for receiving security services from them. The remaining amount is the reimbursable expense towards supply of arms and ammunitions, safety shoes expenses, hired vehicle charges etc., hence, is not includible in the taxable/assessable value. It is submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be set aside and appeal is prayed to be allowed. 4. While rebutting these submissions learned Departmental Representative has pointed out that in written submission dated 10.05.2019 given by the appellant to the department there is an acknowledgment on part of the appellant that while CISF procure the arms and ammunition, the appellant pays the Ministry of Home Affairs for such procurement by CISF. Though there is no documentary evidence of this transaction but the admission is sufficient to show that arms and ammunitions were not freely supplied to the service provider. Otherwise also, the financial statement of the appellant depicts the expenditure made against such supplies in the name of CISF which negates the appellant contention that the impugned charges are not in the nature of incurring reimbursable expenditure. Therefore, Rule 5 of Valuation Rules has rightly been invoked. Learned Departmental Representative has impressed upon Rule 5 sub-clause (i) of the said rules which states that where any expenditure of costs are incurred by the service provider in the course of providing taxable service, all such expenditure or cost shall be treated as consideration for the taxabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. reported as 2013 (9) TMI 294 CESTAT DELHI (LB). 5.3 Now coming to the aspect of including reimbursable expenses in the assessable value and the applicability of Rule 5 of Valuation Rules, 2006. This provision was challenged to the extent it includes reimbursement of expenses in the value of taxable services for the purpose of levy of service tax. The provision was also challenged on the ground that it is ultra vires the provisions of Section 66 and 67 of the Act. Hon ble Delhi High Court while deciding a case titled as Union of India Vs. Intercontinental Consultants Technocrats Pvt. Ltd. reported as 2018 (10) GSTL 401 (SC) has held that Section 66 of the Finance Act levies tax only. On taxable services on construing the provisions of Section 66 and 67(i) together and harmoniously, it is clear that the value of taxable services shall be the gross amount charged by the service provider and nothing more and nothing less than the consideration paid as a quid pro quo for the service rendered. 5.4 The Hon ble High court further held that the common thread that runs through Section 66 and 67 and 94 (the rule making power) manifest that only the service actually provided by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commissioner of Service Tax-I, Pune reported as 2021 (11) TMI 835 CESTAT MUMBAI In appellant s own case (for the period April 2016 to June 2017) involving another unit at Doromalai, the Commissioner (Appeals) has held in favour of the appellant. The copy of the Order-in-Appeal No. BEL-EXCUS-000-APP-MSC-089-2020-21 dated 21.12.2020 is enclosed as part of the paperbook. Seen from these decisions also, the demand in question is liable to be set aside. 5.5 Coming to the issue of invocation of extended period of limitation. From the entire above discussion, we have already concluded that the appellant is wrongly made liable for payment of the impugned amount of demand. There can be no reason with the appellant to not to pay the service tax liability with an intent to evade the duty. There have already been several decisions supporting appellant s case, decision even in appellant s own case. Judicial protocol should have been followed. Otherwise also, it was the incumbent duty of the department to prove the positive act of alleged fraud, suppression or wilful misstatement on part of the appellant. But except that the plea of non-payment of tax as has been considered in the impugned ..... 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