TaxTMI 
TaxTMI 
2013 (9) TMI 394
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....1 (24) STR 343 (Tri-Del.). 3. The proceedings were initiated against the appellant pursuant to an audit whereafter it was assumed by Revenue that the appellant had received advance payments from the clients against services to be provided, on which service tax was not remitted on the taxable 'consultant engineer' service. These proceedings culminated in an adjudication order dated 1.2.2010. Aggrieved, the appellant preferred ST/576/2010 to this Tribunal. This appeal was finally disposed of by the order dated 6.5.2011. Before this Tribunal (in the earlier proceeding) the appellant challenged the assessed liability under four heads: (a) interest demanded on tax due for advance amounts received from clients prior to 16.6.2005, when an amendment was introduced in the Act, to tax advances received.; (b) Tax demanded on bills raised but amounts not yet received; (c) Tax demanded on value of goods supplied for executing the services; and (d) Tax demanded on amounts incurred by the appellant on behalf of the clients and reimbursed by the clients. 4. On the first aspect the appellant contested the liability to tax claiming that there....
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....ication 12/2003-S.T. If not why not. (iii) Evidence, if any, submitted by the Appellant, regarding amounts which were incurred by the Appellant as pure agent and if so whether he is eligible for exclusion of value of such items as per provisions in Rule 5(2) of Service Tax (Determination of Value) Rules, 2006 and if not why not. This issue needs to be examined separately for the period prior to Notification of the said rules on the basis of instructions issued by the Board and case laws on the matter. Further in paragraphs 11 and 12 of the order the Tribunal directed that under each of the above issues, the amounts involved where the appellant executed works as a sub-contractor of main contractor, should be indicated separately and a finding should be given whether on such amounts, the sub-contractor is liable to pay tax. It was also observed that the onus is on the appellant to first give separate worksheets showing invoice numbers, dates and amounts involved in respect of each issue separately and produce evidence, if any in support of its claim and that detailed submissions should be made to the adjudicating authority within the time stipulated. The adjudicating a....
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....rder passed by my colleague. The issues which were not discussed in the said OIO were not alleged in the SCN. All the allegations leveled in the SCN are discussed and the findings were given on the basis of the reply furnished by the assessee. The adjudicating authority cannot go beyond the allegations leveled in the SCN. The relevant paras of the findings of the OIO dated 1.2.2010 is reproduced below which appears to be reasonable": 12. Paragraphs 17 to 20 of the impugned order reproduce (verbatim) paragraphs 15 to 18 of the earlier (invalidated) adjudication order dated 01.02.2010; as under: "17. I also find that w.e.f. 16.06.2005 amendments were made in Section 65 (105) and Section 67 of the Act, and also in Rule 6 of the Rules. Further, prior to 13.05.2005 advance payment was not considered as 'value of taxable service' until and unless the service was rendered. However, w.e.f. 16.06.2005 (as the relevant change in the definition of taxable service was effective from this date) any payments received for the 'taxable services' whether rendered or to be rendered becomes taxable in the hands of service provider at the time of receipt. 18. I further fin....
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.... due dates hence they were liable to pay interest under Section 75 of the Act. That the amendments are not being given retrospective effect as the interest on service tax paid by the noticee on the advances is not being demanded prior to 16.06.2005 but has been demanded only on the advances remaining unsettled for the services rendered after 16.06.2005 as on these advances service tax liability was to be discharged on or before 05.07.2005. 19. On scrutiny of the records w.r.t. service tax liability of the noticee on the amount of reimbursements received during 2006-2007 and 2007-2008 during the course of providing 'taxable services' of Consulting Engineers, I find that the noticee had paid service tax w.e.f. 19.04.2006 (i.e. the date from which Determination of Value Rules, 2006 came into force) but had not paid the service tax on such reimbursements as the contracts/agreements which were entered into by them with their clients prior to 19.04.2006 and amounts/reimbursements were received by them during 2006-2007 and 2007-2008 for the services rendered after 19.04.2006 only. It's also seen that the noticee has contended both in their oral and written submissions about ....
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....ed by them against the contract entered in by them with their clients prior to 18.04.2006, whereas against these contracts services were rendered and payments were received only on after 18.04.2006. I also find service tax liability arises on rendering services and not on entering in any service contract. It is a well settled law that if any amounts are received in connection with various expenditure incurred on behalf of one's clients which are directly related to the services rendered by such person, service tax will be levied on such expenditure. I further find that the fact of paying service tax now on such expenditure, claimed to be incurred by the noticee as pure agent of their clients itself shows that the expenditure had not been incurred by the noticee as a pure agent but was related and necessary for providing services." 13. In paragraph 21, the precedents relied upon by the appellant before him are disposed of as follows: "It is settled law that cases are decided on merit and facts of individual case. The Rule of precedence is not applicable where the facts are entirely different from the facts of the case relied upon and the issues have been judiciously e....
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....espite the direction in the judgment of this Tribunal in para 12 of the earlier judgment, to do so. 17. For the aforesaid reasons the impugned adjudication order dated 22.1.2013 is unsustainable and is accordingly quashed. The matter is also remanded to the Commissioner, Service Tax, New Delhi for passing a fresh adjudication order, in strict compliance and fidelity to the earlier judgment of this Tribunal dated 6.5.2011 in ST Appeal No.576 of 2010. We make it clear, that since the earlier adjudication order dated 01.02.2010 was specifically set aside by this Tribunal in the judgment dated 6.5.2011, it is improper and impermissible for the adjudicating authority to rely on the discussion and analysis in the earlier adjudication order dated 1.2.2010, while passing the fresh adjudication order. 18. In the facts and circumstances of the case and since the alleged liability to service tax, assessed against the appellant herein pertains to 2003-204 to 2007-08, we direct that the Commissioner shall pass a de novo adjudication order and in compliance of the earlier order of this Tribunal dated 6.5.2011, within eight weeks from the date of receipt of this order. The Commissioner shall al....