2024 (9) TMI 1415 - AT - Service Tax

Service tax demand set aside due to no suppression found in manpower recruitment case

Milan Jashbhai Patel Versus Commissioner of C.E. & S.T. -Vadodara-I

The CESTAT Ahmedabad allowed the appeal in a service tax case involving manpower recruitment services. The department alleged short payment of service tax ... Short payment of service tax - manpower recruitment or supply agency service - suppression of value of taxable service - it was noticed by the department that noticee have shown less income in their ST-3 returns as compared to the income shown in their profit and loss account for the period covering 2006-2007 to 2009-2010 - HELD THAT:- The appellant have been discharging their service tax liability on the gross amount received by them for manpower recruitment or supply agency service. However, the appellants have also received reimbursement of the certain expenditures made by him on account of the service recipient on the manpower supplied by him to them on account of supply of shoes and uniform, making provision for the provident fund, providing bonus, insurance etc. - It can be seen from the statement of profit and loss account that other than the income on account of the supply of the manpower under head ‘Labour Charges’ the appellant has got reimbursement on account of PF, shoes, insurance, uniform etc. on actual basis which have been made by him. The issue involved in the present appeal is no longer res- integra. As this Tribunal in case of STAR FREIGHT PVT. LTD. VERSUS C.S.T. -SERVICE TAX - AHMEDABAD [2023 (9) TMI 71 - CESTAT AHMEDABAD] has held that 'there is no suppuration of fact or malafied intention to evade payment of service tax, demand for the extended period shall not be sustainable also on the ground of limitation.' The impugned Order-In-Appeal is without any merit and is set aside - appeal allowed. Issues Involved:1. Suppression of taxable value and short payment of service tax.2. Reimbursement of expenses and its inclusion in taxable value.3. Applicability of Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006.4. Classification of services under Business Auxiliary Service (BAS).5. Classification of services under Support Services of Business or Commerce (SSBC).6. Limitation period for issuing show cause notice and invoking extended period of limitation.Issue-wise Analysis:1. Suppression of Taxable Value and Short Payment of Service Tax:The appellant was engaged in providing Manpower Recruitment or Supply Agency Services and was registered with the service tax department. During an audit, it was found that the income shown in their ST-3 returns was less than the income shown in their profit and loss account for the period from 2006-2007 to 2009-2010. The department alleged that the appellant suppressed the taxable value and short paid service tax amounting to Rs. 15,27,818/-. The appellant had already deposited Rs. 8,06,956/- before the issuance of the show cause notice.2. Reimbursement of Expenses and Its Inclusion in Taxable Value:The appellant contended that certain amounts collected as reimbursement for expenses incurred on behalf of the service recipients should not be included in the taxable value. These expenses included payment of bonus, supply of shoes and uniform, PPF, and insurance. The appellant argued that these were actual reimbursements and should not be considered as taxable value under Section 67 of the Finance Act, 1994.3. Applicability of Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006:The appellant relied on the decision of the Hon'ble Supreme Court in the case of Union of India vs. Intercontinental Consultants and Technocrats Private Limited, where Rule 5(1) of the Determination of Value Rules, 2006 was held ultra vires. The Tribunal noted that the issue was no longer res integra and cited the case of Star Freight Pvt. Ltd. vs. C.S.T.-Service Tax- Ahmedabad, which held that reimbursable expenses should not be included in the taxable value.4. Classification of Services under Business Auxiliary Service (BAS):The Tribunal examined whether the incentive charges received by the appellant for achieving business targets and profit share from overseas agents were liable to be taxed under BAS. It was found that the show cause notice and the impugned order did not specify the exact clause under Section 65(19) of the Act, making the demand vague and unenforceable. The Tribunal followed the decisions in Commissioner of Customs & Central Excise, Goa v. Swapnil Asnodkar and United Telecoms Ltd. v. Commissioner of Service Tax, Hyderabad, which emphasized the necessity of specifying the exact liability under the statute.5. Classification of Services under Support Services of Business or Commerce (SSBC):The Tribunal found that the demand under SSBC for various charges recovered by the appellant was not sustainable. The activities undertaken by the appellant, such as paying charges on behalf of clients and getting reimbursed, did not fall under the definition of SSBC. The Tribunal cited the case of Bax Global India Ltd. v. Commissioner of Service Tax, which held that profit from such activities could not be subject to service tax.6. Limitation Period for Issuing Show Cause Notice and Invoking Extended Period of Limitation:The Tribunal noted that the issue involved was of pure interpretation of legal provisions, and there was no malafide intention or suppression of facts by the appellant. The demand for the extended period was not sustainable, and the Tribunal set aside the demand on the grounds of limitation, following the decisions in Adani Enterprise Ltd Vs. CST and UOI Vs. Intercontinental Consultants and Technocrats Pvt. Ltd.Conclusion:The Tribunal found that the impugned Order-In-Appeal was without merit and set it aside. The appeal was allowed, and the service tax demand was not sustained on both merits and limitation grounds. The judgment emphasized that reimbursable expenses should not be included in the taxable value, and specific clauses under BAS and SSBC must be clearly identified in show cause notices and orders.