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TMI Blog2024 (2) TMI 1521X X X X Extracts X X X X X X X X Extracts X X X X ..... tended period cannot be sustained and on the same ground, the penalty can also be not imposed. Further, since these conditions are not established, therefore, the benefit under Section 73(3) cannot be denied and once the amount has been paid along with interest, there was no need to issue SCN. Therefore, on this count, the Order of the Commissioner imposing penalty, in the facts of the case, cannot sustain and accordingly, the penalty imposed by the Adjudicating Authority is set aside. Short payment of Service Tax under Business Support Service by wrongly claiming deduction under Pure Agent clause - HELD THAT:- During the material time, Rule 5 provided for inclusion of reimbursable activities as part of service provided. As per Rule 5(1), as it existed during the material time, whether any expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs were to be treated as consideration for taxable service provided or to be provided and shall be included in the value for the purpose of charging Service Tax on the said service. Therefore, irrespective of the fact whether the expenditure or costs are incurred on re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also found to have short paid Service Tax under the category of 'Business Support Service' (BSS) by claiming irregular deduction under Pure Agent clause. 3. Learned Advocate for the appellant has submitted that they have already paid the entire tax amount along with interest in respect of alleged short payment of Service Tax on import of services as well as for irregular availment of Cenvat credit amounting to Rs.17,88,580/-. These payments were made even before the issuance of SCN dt.04.04.2012. They are only contesting the imposition of penalty in regards to those short payments in respect of which they have already made payment of Service Tax along with interest prior to the issuance of SCN. Insofar as the demand in respect of exclusion of reimbursement charges by denying them the benefit as pure agent, he is contesting that Service Tax is not payable on reimbursement received by the appellant, as has been held in catena of judgments including Madhya Gujarat Vij Company Ltd Vs CCE & ST, Vadodara-I [2024 (11) TMI 1183 - CESTAT Ahmedabad], Hazira LNG Pvt Ltd Vs CST-Service Tax [2022 (11) TMI 437 - CESTAT Ahmedabad] and Reliance ADA Group Pvt Ltd Vs CST, Mumbai-IV [2016 (3) TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions under section 73(3) where it has been provided that where any Service Tax has not been paid or short paid, the person may pay the said amount on his own ascertainment or on the basis of tax ascertained by Central Excise officer before service of notice on him under sub-section (1) in respect of such Service Tax and inform the Central Excise officer of such payment in writing, who on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid. It, however, provides that interest shall be liable to be paid, as also that this provision would not be applicable in case there is short-payment, etc., by the reasons of fraud, collusion, willful mis-statement, suppression of facts or contravention of any provision with intent to evade payment of Service Tax. On going through the impugned order, the Adjudicating Authority at Para 15.2 has only said that they have short paid Service Tax on import of service under RCM as well as availed Cenvat credit, which was not due to them and that they had suppressed the facts in the returns filed by them. Though there was enough clarity about the tax liability and admissibility of Cenvat credit, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicating Authority has examined these agreements and relied on the provisions of Service Tax (Determination of Value) Rules, 2006 to examine whether they are eligible for the deduction in respect of the amount incurred by them acting as pure agent. In this case, the appellants were getting certain reimbursement for certain expenses incurred on behalf of M/s BSG. The appellants claim that the said reimbursement cannot be clubbed in the gross value of consideration for the purpose of charging Service Tax as it would be eligible for exclusion in terms of Rule 5(2) of Service Tax (Determination of Value) Rules, 2006. 11. In order to understand this charge, it has to be observed that during the material time, Rule 5 provided for inclusion of reimbursable activities as part of service provided. As per Rule 5(1), as it existed during the material time, whether any expenditure or costs are incurred by the service provider in the course of providing taxable service, all such expenditure or costs were to be treated as consideration for taxable service provided or to be provided and shall be included in the value for the purpose of charging Service Tax on the said service. Therefore, irres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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