2011 (8) TMI 430 - AT - Service Tax

Service provider's separate invoices for charges and 'reimbursements' treated as taxable inputs; reimbursed costs added to taxable value

SRI BHAGAVATHY TRADERS Versus COMMISSIONER OF CENTRAL EXCISE, COCHIN

CESTAT held that the service provider under-declared taxable value by issuing separate invoices for service charges and purported reimbursements ... Reimbursement of expenses - Clearing and Forwarding (C&F) agency services - HELD THAT:- The appellants were not paying service tax on the correct taxable value as they were preparing two invoices, one for service charges and another for amounts claimed as reimbursement of expenses incurred towards transportation charges, loading and unloading charges, rent, salary to the staff, electricity, telephone charges, stationery charges, courier charges, etc. - The claim for reimbursement towards rent for premises, telephone charges, stationary charges, etc. amounts to a claim by the service provider that they can render such services in vacuum. - What are costs for input services and inputs used in rendering services cannot be treated as reimbursable costs. - There is no justification on legal authority to artificially split the cost towards providing services partly as cost of services and the rest as reimbursable expenses. Issues Involved:1. Includability of reimbursement charges in the gross value for discharge of Service Tax.Issue-wise Detailed Analysis:1. Includability of Reimbursement Charges in Gross Value for Service Tax:The appellants, engaged in rendering Clearing and Forwarding (C&F) agency services, were found to be preparing two separate invoices: one for service charges and another for reimbursement of expenses such as transportation, loading and unloading, rent, salary, electricity, telephone, and stationery charges. The primary issue was whether these reimbursed expenses should be included in the taxable value for service tax purposes.Tribunal's Referral Bench Observations:The Tribunal noted conflicting decisions from different Coordinate Benches on whether reimbursement charges should form part of the gross value for service tax. Some decisions, like Sri Sastha Agencies Pvt. Ltd. and Bhagyanagar Services, held that reimbursement charges should not be included, while others, like Naresh Kumar & Co. Pvt. Ltd., held that they should be included.Appellants' Arguments:The appellants argued that according to their agreements, expenses incurred towards electricity, water, communication, stationery, security, manpower, and transportation were reimbursable on an actual basis. They relied on several Board's Circulars and previous Tribunal decisions to support their claim that only the gross amounts of remuneration or commission paid to the C&F Agent should be taxable, excluding reimbursed expenses.Respondent's Arguments:The respondent argued that under Section 67 of the Finance Act, 1994, service tax is levied on the gross amount paid by the service recipient, which includes all expenses incurred towards providing the service. They cited Rule 6(8) of the Service Tax Rules, 1994, which defines the value of taxable service as the gross amount of remuneration or commission paid to the agent.Tribunal's Analysis:The Tribunal critically analyzed various decisions cited by both sides. It noted that many decisions relied upon by the appellants were rendered by Single Member Benches or were based on specific facts without discussing legal provisions on valuation. The Tribunal emphasized that reimbursement arises only when the service provider pays an amount on behalf of the service recipient, who is legally or contractually obligated to pay it.Key Findings:- The Tribunal found that costs for inputs and services used in rendering the C&F services could not be treated as reimbursable costs.- It held that artificially splitting costs into service charges and reimbursable expenses without legal justification was not permissible.- The Tribunal concluded that there was no conflict in the decisions of the Coordinate Benches when analyzed with the correct understanding of reimbursable expenses.Conclusion:The Tribunal returned the file to the Referral Bench for a decision on merits, instructing them to consider the relevant facts of the case in light of the findings on the concept of reimbursable expenses. The judgment emphasized that the gross amount charged for services rendered should include all expenses incurred in providing the service, thus including reimbursement charges in the taxable value for service tax purposes.Pronouncement:The judgment was pronounced in the open court on 8-8-2011.