TMI Blog2024 (2) TMI 1133X X X X Extracts X X X X X X X X Extracts X X X X ..... der the relevant Sections is only the consideration for the taxable service. By including the expenditure and costs, Rule 5(1) goes far beyond the charging provisions and cannot be upheld. The above order of Hon ble Delhi High Court has also been endorsed by Hon ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] where it was held that value of free supplies of diesel and explosives would not warrant inclusion while arriving at the gross amount charged on its service tax is to be paid. The impugned order-in-appeal is not sustainable and therefore set aside - appeal allowed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges which have been invoked in the show cause notice. The appellant have filed appeal before the Commissioner (Appeals) who vide impugned order-in-appeal dated 03.09.2014 has rejected the appeal of the appellant. Accordingly the appellant is before us. 2. We have heard both sides. We find that the matter is no longer res-integra as Hon ble Delhi High Court in the case of Intercontinental Consultants and Technocrats Pvt. Limited vs. UOI reported at 2013 (29) STR 9 (Delhi) has held as follows:- 10 . The contention of the petitioner that Rule 5(1) of the Rules, in as much as it provides that all expenditure or costs incurred by the service provider in the course of providing the taxable service shall be treated as consideration fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial gazette, such rules can only be made for carrying out the provisions of this Chapter i.e. Chapter V of the Act which provides for the levy, quantification and collection of the service tax. The power to make rules can never exceed or go beyond the section which provides for the charge or collection of the service tax. The above order of Hon ble Delhi High Court has also been endorsed by Hon ble Supreme Court in the case of UOI vs. Intercontinental Consultants and Technocrats Pvt. Limited reported in 2018 (10) GSTL 401 (SC). The relevant portion of the above mentioned order is reproduced as under:- 24 . In this hue, the expression such occurring in Section 67 of the Act assumes importance. In other words, valuation of taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actually provided by the service provider. 26 . It is trite that rules cannot go beyond the statute. In Babaji Kondaji Garad, this rule was enunciated in the following manner : Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the byelaw, if not in conformity with the statute in order to give effect to the statutory provision the Rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. 27 . The aforesaid principle is reiterated in Chenniappa Mudaliar holding that a rule which comes in conflict with the main enactment has to give way to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited [(2015) 1 SCC 1] wherein it was observed as under : 27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to understand a legislation. Former technique is known as legislative drafting and latter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tivity is the principle of fairness , which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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