TaxTMI 
TaxTMI 
2017 (11) TMI 1573
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....peal, inter alia submits as under: (i) Service tax is wrongly confirmed on the amount realised for the services provided prior to 1.5.2006. (ii) Credit has wrongly been not allowed of Rs. 1,74,681/-. (iii) Amount incurred and charged as Pure Agent is not chargeable to tax. These expenses are incurred on behalf of the client; they are reimbursed by the client and these are substantiated by documentary evidence. In support, the following cases are relied upon: (a) CCE, Belgaum Vs. Pratik Agencies - 2008 (11) STR 117 (Tri.-Bang.) (b) Scott Wilson Kirkppatrick (I) P. Ltd. Vs. CST, Bangalore - 2007 (5) STR 118 (Tri.-Bangalore). (c) Malabar Management Services P. Ltd. Vs. CST, Chennai - 2008 (9) STR 483. (iv) Reimbursement of expenses charged on actual basis is not taxable under Rule 5(2) of Service Tax (Determination of Value Rules), 2006. (v) The extended period is not invocable. The appellant relies on the Apex Court's judgement in the case of M/s Kushal Fabricators Pvt. Ltd. Vs. CCE - 2009 (238) ELT 21 (SC). All the facts were known to the department regularly from the year 2006-2007. (vi) Looking to the....
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....ut services in performing the act of recovery agent, therefore, even if such expenses are subsequently reimbursed by the Banks, are includible in the taxable value. This is also the view of Hon'ble Tribunal in number of cses out of which some are quoted below (a) CCE Vs. Team S&S -2011 (930) STT 30 and (b) Harveen & Co. Vs. CCE - 2011 (30) STT 111. .......................... I further find that the appellant had made expenses towards Tractor seizing (Towing) charge and getting reimbursement of such expenses from the Bank. The investigation has brought on record that the appellant have charged service tax to banks on such amount. Annexure-V to the show cause notice are some invoices of the appellants which were retrieved from the seized computer, also shows that the service tax is also charged on the charged for out of pocket expenses. The appellant have disputed these invoices and its content. However, they have submitted that they have not charged service tax on reimbursed amount. The said argument of the appellant. In view of contrary evidence on record (Annex-X to the Show Cause Notice) cannot be accepted. I also find that the appellant made expenses for security guard,....
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....certain expenses incurred on various items resulted in double taxation, the appellant would be entitled to claim the same back as Cenvat credit/refund. For this purpose, the matter is remanded back to the original adjudicating authority, who shall give the relief of Cenvat credit/refund on this after giving a personal hearing to the appellants and after necessary verification. 7.2 Extended period not invocable - The appellant's submission that there is no wilful suppression of facts or mis-statement with intent to evade payment of tax cannot be accepted as the facts on record indicate that the appellant did not disclose required information to the department. The appellant disregarded the summons issued to them and they tried to avoid joining investigation. Revenue makes the case only after seizure of documents and after retrieval of information from seized computer belonging to the appellant. Therefore, the Commissioner's conclusion that appellant made deliberate mis-declaration and suppression of fact cannot be questioned. 8. In the light of above discussions, the appeal is not allowed except on the issue of 'denial of Cenvat credit' for which the case is remanded back to t....
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....ansportation, air expenses, video recording, parking charges, etc. are the obligation of the appellant who is a mere recovery agent on behalf of the Banks. 15. The Hon'ble High Court of Delhi in the case of Intercontinental Consultants & Technocrats Pvt. Ltd. Vs. UOI 2013 (29) STR 9 (Delhi) have considered the service tax (Determination of Value) Rules 2006 and have held that Rule 5 (1) of the said Rules as ultra vires in as much as the same travels beyond the scope of section 66 and 67 of the Finance Act 1994. The Hon'ble High Court observed that value of taxable services has to be in consonance with section 66 which levies tax only on taxable services and nothing else. Section 67 of the Finance Act clearly stipulates that the value of the taxable service is gross amount charged by service provider "for such service". Accordingly, the Hon'ble High Court has held that the expenditure / cost such as air travel / hotel stay / transportation etc. incurred by service provider in course of providing taxable services cannot be considered to be the amount charged by service provider "for such service" provided by him. The said decision of the Hon'ble High Court of Delhi is fully applic....
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....e case of Continental Foundation Joint Ventures Vs. CCE Chandigarh-I 2007 (16) ELT 177 (SC). As such I am of the view that the demand having been raised by invoking longer period of limitation is not sustainable. The same is accordingly set aside the appeal is allowed with consequential relief on the point of time bar. 18. As regards the remand of the matter relating to issue of denial of cenvat credit, I agree with the Ld. Member (Technical). Difference of Opinion: i) Whether the demand has to be upheld by not excluding the reimbursable expenses from the value of the services as held by Ld. Member (Technical) or the same have to be excluded subject to verification of the agreement between the appellant and the banks and the invoices etc. as held by Ld. Member (Judicial). ii) Whether the extended period of limitation has been rightly invoked as held by Ld. Member (Technical) or the demand is barred by limitation as held by Ld. Member (Judicial) and as such, the appeal is to be allowed in toto, on the said disputed issue. [Pronounced in the open court on 16.02.2017} (Ashok K. Arya) Member (Technical) (Archana Wadhwa) Member (Judicial) Interim Orde....
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.... 4. I have heard ld. Counsels for the appellants and ld. AR for the Revenue and perused the appeal records. 5. Ld. Member (T) reproduced, at length, the findings of the ld. Commissioner (Appeals) in the impugned order. It is seen that the impugned order as well as the ld. Member (T) placed reliance on the decision of the Larger Bench in Bhagvathy Traders - 2011-TIOL-1155-CESTAT-BANG.LB. The said decision is not a ratio for disallowing reimbursable expenses for exclusion from the taxable service. In fact, the said decision only framed certain guidelines stating that reimbursable expenses can be excluded only when the service provider was not under any obligation to incur such expenses and the same is done on behalf of the service recipient. In other words, the excludability of any expenses claimed to be reimbursed depends on the facts and circumstances of each case and the terms of the agreement relevant to the said case. In the present appeal, the appellant categorically claimed that in terms of the agreement with client banks, they are incurring various expenses during the course of providing service as recovery agent. These expenses were reimbursed to them on actual basis. Th....