2018 (9) TMI 500

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....% of sale proceeds in the form of commission for providing space and other infrastructural support such as electricity water manpower and security etc. to the 'Shan-e-Bhopal'. During the audit by the department, it was detected that the appellant had received certain amounts towards electricity and water charges since 2008-2009 and on which no service tax has been paid. After necessary verification, the department has issued following three Show cause notices demanding a total amount of Rs. 5,59,042/- as the Service tax. The penalty under section 78 of Central Excise Act, 1994 has also been invoked. Three Show cause notices came to be issued in this regard, the details of which are as follows: Sr.No. Show cause notice No. & date Pe....

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....ricity charges are concerned, the same is not within the provisions of service tax law as they have purely acted as an agent in collecting the electricity and water charges and no services in this regard is provided by them to the 'Shan-e-Bhopal restaurant'. It has also been contended that as per the provisions of Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006, the expenses or cost incurred by the service provider as a pure agent shall not be forming the part of the value of taxable service and as the electricity and water charges have been collected by them purely as an agent, and therefore, the department should not have issued the Show cause notices demanding service tax on the charges which have been collected by them....

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..... It is also a matter of fact that electricity and water charges have also been recovered by the appellant from the restaurant owner on actual basis and same has been deposited with the respective authorities providing electricity and water to the said premises. It has also been argued that so far as the service tax on 20% commission charges is concerned, the appellant has also deposited the same with the Government exchequer and wherever there has been any delay in payment of service tax, same has been deposited with due interest leviable thereon. 6. In view of the above, the only question which remains before us for deciding is whether the electricity and water charges recovered by the appellant will form part of the value of the servi....