2024 (1) TMI 984

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....ns:- Mangarpatta township Dev.& construction co.Ltd. vs. C.C.E., pune -III -2016 (43) S.T.R. 132 (Tri.- Mumbai) Hindustan Oil Exploration Co. Ltd. Vs. Commr. of GST & C. EX., Chennai 2019 (25) G.S.T.L. 252 (Tri. Chennai) Indian Additives Ltd. Versus Commissioner of GST & Central Excise Chennai, Outer Commissionerate 2021 (10) TMI 487 CESTAT Chennai VSL India Private Limited Versus Commissioner of Service Tax, Chennai 2023 (3) TMI 802 CESTAT Chennai T.V.S. Motor Company Ltd. Vs. CCE-2021 (55) G.S.T.L. 459 (Tri. Chennai) Garware Polyester Ltd. Vs. Commissioner of C. EX. & CUS., Aurangabad 2017 (5) G.S.T.L. 274 (Tri. Mumbai) Centre For High Technology Vs. C.S.T. -Service Tax Delhi (8) TMI 243 CESTAT New Delhi 2.1 He further submits the Section 67 of the Finance Act, 1994, provides the mechanism for computation of value of taxable services for charging Service tax. It means the gross amount charged by the service provider for such service provided or to be provided by him in case consideration is charged in terms of money. Accordingly, the gross amount charged in the present case is the invoice value and not over and abo....

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....act with intent to evade service tax on the part of the appellant, demand is barred by limitation. He takes support of the following judgments:- Simplex Infrastructures Ltd. Vs. Commissioner of Service Tax, 2016 (42) S.T.R. 634 (Cal.) Delhi International Airport Ltd. Vs. Commissioner of CGST- 2019(24) GSTL 403 (T). Binjrajka Steel Tubes Ltd. Vs. Commissioner of C. Ex., 2016 (342) EL T 302 (T) Roma Henny Security Service Pvt. Ltd. Vs. Commissioner of Service Tax, Delhi, 2018 (8) G.S.T.L. 239 (Del.) 3. Shri Anoop Kumar Mudvel, Learned Superintendent (AR) appearing on the behalf of the Revenue reiterates the finding of the impugned order. 4. We have carefully considered the submission made by both the sides and perused the records. We find that as per the un-disputed fact the appellant have paid the service tax on the total value of the invoice raised by the Foreign Service Provider under reverse charge mechanisms. As per the Income Tax Act, the appellant have discharged the TDS on the invoice value and the same was borne by the appellant. In this position, since the TDS is not a part and partial of gross value of the service, the same cannot ....

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....er, for the service provided or to be provided is inclusive of service tax payable, the value of such taxable service shall be such amount as, with the addition of tax payable, is equal of to the gross amount charged (3) The gross amount charged for the taxable service shall include any amount received towards the taxable service before, during or after provision of such service (4) Subject to the provisions of sub-sections (1), (2) and (3), the value shall be determined in such manner as may be prescribed. Explanation-For the purposes of this section. (a) "consideration" includes any amount that is payable for the taxable services provided or to be provided (b) money includes any currency, cheque, promissory note, letter of credit, draft, pay order, travellers cheque, money order, postal remittance and other similar instruments but does not include currency that is held for its numismatic value (c) gross amount charged includes payment by cheque, credit card, deduction from account and any form of payment by issue of credit notes or debit notes and book adjustment." It can be seen from the above reproduced Section 67 that it....

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....ellant has explained that there were two types of contracts and in the second category, the tax has to be borne by the service recipient which is the appellant herein. There is no dispute with regard to the service tax that is payable under the first category as a service provider. The demand is only with regard to the second type of contracts. The appellant has furnished documents to show that though TDS amount is deposited the same is borne by the appellant and has not been made part of the consideration. On perusal of documents, we are convinced that TDS has been borne by the appellant. For example, the letter dated 10-5-2006 shows that the appellant has to pay USD 319710 to the foreign company, namely, Thai Nippon Steel Engineering & Construction Corporation Ltd. The said amount has been fully paid as per the foreign certificate remittances. They have not deducted TDS but in fact have discharged the TDS liability. The appellant has borne the same as expenses of their company. On such score, we find that the demand of service tax alleging that TDS has not been included in the gross value is incorrect on facts and cannot sustain. We find that the issue is covered by the decision ....

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.... of Section 66A, shall be such amount as is equal to the actual consideration charged for the services provided or to be provided. (2) Notwithstanding anything contained in sub-rule (1), the value of taxable services specified in clause (ii) of rule 3 of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, as are partly performed in India, shall be the total consideration paid by the recipient for such services including the value of service partly performed outside India." It can be seen from the above reproduced Rule that for the purpose of discharge of Service Tax for the service provided from outside India, the value is equal to the actual consideration charged for the services provided or to be provided. In the case in hand, we specifically asked for the invoice/bill raised by the service provider and on perusal of the same, we find that appellant had discharged the consideration as raised in the said invoice/bill. There is nothing on record that Indicates that the appellant had recovered that amount of Income Tax paid by them on such amount paid to the service provider from the outside India and any other material to hold tha....