TaxTMI 
TaxTMI 
TaxTMI 
2024 (9) TMI 551
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....ice Tax Rs. 8,60,866/- for the period April 2008 to March 2013 under Section 73 of the Finance Act, 1994 by invoking the extended period of limitation as per the provisions of sub Section 1 of Section 73. The show cause notice have also invoked provision with regard to the interest and penalties as provided under Section 75, 77 and 78 of the Finance Act, 1984, respectively. The matter had been adjudicated vide impugned Order-In-Original dated 24th October, 2015 where under all the charges as invoked in the show cause notice have been confirmed by the Adjudicating Authority. The appellant have approached the office of Commissioner (Appeals), however, there also they did not succeed and the learned Commissioner (Appeal) vide impugned Order- In-Appeal dated 5th February, 2018 has decided the appeal against them. The appellant is before us against the above mentioned impugned order in appeal dated 5th February, 2018. 2. The learned Advocate appearing for the appellant have submitted that the Service Tax has been demanded from the appellant in respect of amount collected by them as reimbursement charges in respect of transportation of the goods undertaken by them on behalf of their pri....
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....count head wise receipt and expenditure from the documents collected in respect of the appellant during the year 2008-09 to 2012-13 it was forthcoming that the appellant had received more amount than the actual expenditure incurred towards labour charges (loading/unloading charges) and transport charges. 5.4. It is also relevant to mention that according to the Rule 5 of the Service Tax (Determination of Value) Rules, 2006 as amended, the appellant. M/s Archna Traders cannot be termed as the pure agents and hence are liable to pay Service Tax on entire gross amount charged and recovered by them under different heads and hence all such expenditure received as reimbursement by M/s Archana Traders shall be treated as consideration for the taxable service provided and shall be included in the value for the purpose of charging Service Tax. The appellant has received extra amount than the amount from their clients towards providing of various services and hence cannot be termed as pure agent as per Rule 5 of the Service Tax (Determination of Value) Rules, 2006 and hence all such value are required to be included in the value for the purpose of charging service Tax on the said services ....
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....cided by the adjudicating authority. I further find that the imposition of penalty under section77 & 78 of the Finance Act, 1994 is justified and I do not find any reason to interfere with the order-in-original of adjudicating authority." 4.1. We find that the logic adopted by the learned Commissioner (Appeal) in his above mentioned findings is legally not sustainable as the Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Ltd. In its order dated 30.04.2012 have held that Rule 5 (1) of the Service Tax Valuation Rules is contrary to the provision of Section 67 of the Finance Act, 1994 and thus has been declared Rule 5(1) as ultra virus. Since, the matter has already been decided at the higher form as well as by this tribunal in case of M/s. Cosmos Clearing Agencies Vs. Commissioner Of Central Excise ,Nagpur-II reported under 2020(1) TMI 1232 - CESTAT Mumbai Where under this Tribunal has held as follows : - "5. In the case in hand, the appellant had entered into the agreement dated 01.04.2007 with the principal M/s HUL for warehousing the goods in the godown, belonging to them. Freight for inward movement of goods to the godown was born....
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....le service was challenged before the Hon'ble Delhi High Court in the case of Intercontinental Consultants and Technocrafts Pvt. Ltd. The Hon'ble High Court by order dated 30.11.2012 have held that Rule 5(1) ibid runs contrary to the provisions of Section 67 ibid and accordingly, declared such Rule as ultra vires. The relevant paragraph in the said judgment is extracted herein below: 18. Section 66 levies service tax at a particular rate on the value of taxable services. Section 67 (1) makes the provisions of the section subject to the provisions of Chapter V, which includes Section 66. This is a clear mandate that the value of taxable services for charging service tax has to be in consonance with Section 66 which levies a tax only on the taxable service and nothing else. There is thus in built mechanism to ensure that only the taxable service shall be evaluated under the provisions of 67. Clause (i) of sub-section (1) of Section 67 provides that the value of the taxable service shall be the gross amount charged by the service provider "for such service". Reading Section 66 and Section 67 (1) (i) together and harmoniously, it seems clear to us that in the valuation of the ....