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2023 (8) TMI 1048 - AT - Service TaxValuation of services - Manpower Recruitment or Supply Agency service - inclusion of consideration for salary, EPF and ESI as gross value of taxable services in terms of Section 67 of Finance act 1994 - time limitation - HELD THAT:- It is not the case of the Department that the appellant is separately recovering the charges towards wages, EPF, ESI etc. and that the same are not reimbursable deductions - it is found that though the agreement is on the basis of perkilometer per-person provided by the appellants to M/s PRTC, it is the PRTC who have also indicated the wages, PF etc. to be paid by the appellants. Notwithstanding the fact that the contract or the offer letter issued by PRTC does not indicate the wages etc. separately, the circular issued by them indicates the same. It is not the claim of the Department that such wages, PF etc. are not paid by the appellants or not paid in full by the appellants. Therefore, it is opined that they are in the nature of the reimbursable expenses and cannot be termed to be expenditure incurred by the appellants in the course of provision of the service. Moreover, going by the latest decision of the Tribunal in the case of M.P. Security Force [2019 (8) TMI 211 - CESTAT NEW DELHI], it is found that wages, EPF, ESI etc. cannot be included for the purpose of arriving at the value of taxable service for the purpose of Service Tax Valuation Rules. Extended period of limitation - HELD THAT:- vide a catena of judgments including that of PUSHPAM PHARMACEUTICALS COMPANY VERSUS COLLECTOR OF C. EX., BOMBAY [1995 (3) TMI 100 - SUPREME COURT], it was held that mere non-obtaining of registration; non-filing of returns and nonpayment of service tax does not constitute a “suppression” with intent to evade service tax in order that extended period is liable to be invoked; there should be a positive act on the part of the assessee to show that there is such suppression or mis-statement etc. with intent to evade service tax. In the instant case, the Department has not adduced any evidence to this effect other than bare averment that extended period is invokable - Therefore, in view of the judgments, it is opined that in the facts of the impugned case, extended period cannot be invoked and the appellants succeed on limitation also. The appellants contended that they are not a “Commercial Concern” during the period 01.04.2006 to 30.04.2006 - HELD THAT:- This issue pertains to only a small period and as the appellants succeed both on merits and limitation, any discussion on this count is redundant. Appeal allowed.
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