2019 (1) TMI 715 - AT - Service Tax

Tribunal excludes E.S.I./P.F./W.C.P. from taxable service value under Manpower Recruitment Agency Service

The Tribunal allowed the appeal, holding that reimbursable expenses such as E.S.I./P.F./W.C.P. should not be included in the assessable value of services ... Valuation - Liability of service tax - reimbursement received from the customers on account of E.S.I./P.F./W.C.P - Manpower Recruitment and Supply Agency Service - Held that:- Hon’ble Delhi High Court in the case of M/s Intercontinental Consultants & Technocrats Pvt. Ltd. [2012 (12) TMI 150 - DELHI HIGH COURT] has held Rule 5 (1) of the Rules as running counter and repugnant to Section 66 & 67 of the Act and to that extent the same has been held as ultra-vires. The Hon’ble High Court observed that it purports to tax not what is due from the service provider under the charging Section, but seeks to extract something more from him by including in the valuation of the taxable service the other expenditure and costs which are incurred by the service provider. Inasmuch as the issue stands settled that reimbursable expenses cannot form part of the gross value of the services being provided by the service provider, we find no reasons to include the E.S.I./P.F./W.C.P. amount in the assessable value of the services, inasmuch as the same are admittedly reimbursable to the persons concerned. Appeal allowed - decided in favor of appellant. Issues Involved:Whether the appellant, a service provider under 'Manpower Recruitment and Supply Agency Service,' is required to pay service tax on reimbursement received for E.S.I./P.F./W.C.P.Analysis:1. The Revenue initiated proceedings against the appellant, demanding service tax for the period 2009-10 to 2012-13, arguing that reimbursable expenses should be included in the total value of services as per Section 67 of the Finance Act, 1994 and Rule 5 of the Service Tax (Determination of Value) Rules, 2006.2. The appellant contended that Rule 5 of the Service Tax Rules had been declared ultra vires by the Delhi High Court in a previous case, emphasizing that reimbursable expenses cannot be part of the assessable value of services. The appellant cited several tribunal decisions supporting this stance.3. Despite the appellant's reliance on the Delhi High Court decision, the Commissioner (Appeals) did not consider it and instead relied on a different tribunal decision, holding that E.P.F., E.S.I.C., etc., are part of taxable services. The limitation aspect of the demand was also not discussed by the Appellate Authority.4. The Tribunal noted the Delhi High Court's decision that Rule 5(1) of the Rules is ultra vires as it seeks to include additional costs incurred by the service provider in the valuation of taxable services. Several tribunal decisions have followed this ruling, establishing that reimbursable expenses should not be part of the gross value of services.5. Given the settled principle that reimbursable expenses should not be included in the assessable value of services, the Tribunal found no justification for including E.S.I./P.F./W.C.P. amounts in the assessable value, as these expenses are reimbursable.6. Consequently, the Tribunal set aside the impugned order and allowed the appeal on merit, without delving into the limitation plea raised by the appellant.This detailed analysis of the judgment highlights the key legal arguments, precedents, and conclusions reached by the Tribunal regarding the issue of service tax on reimbursable expenses in the context of 'Manpower Recruitment and Supply Agency Service.'