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2024 (1) TMI 984 - AT - Service TaxDemand of service tax - Valuation -TDS deposited to the Income Tax department in relation to the payment made to the Foreign Service Provider - the TDS is over and above the invoice value of service - Extended period of limitation - HELD 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 be taxed under Finance Act, 1994. As per Section 67, it is clear provision that the only the gross value towards the service paid or payable shall be chargeable to Service Tax. In this case the gross value is the value of invoice on which service tax was discharged. It can be seen from Section 67 that it contemplates how the valuation of taxable service for charging Service Tax needs to be arrived and sub-section 1(1) provides for valuation wherein consideration paid in money, be the gross amount charged by the service provider. The phrase "gross amount charged also is explained in the said Section. Reading holistically, it is found that Section 67(1) very clear mandates for discharging the Service Tax liability amount which is charged by the service provider is the amount. It can be seen that in M/S. HINDUSTAN OIL EXPLORATION CO. LTD. VERSUS COMMISSIONER OF GST & CENTRAL EXCISE [2019 (2) TMI 1248 - CESTAT CHENNAI] in the identical facts it was held that the TDS deposited which is over and above the invoice value cannot be charged to service tax. Accordingly, the demand in the present case is not sustainable, hence the impugned order is set aside - appeal allowed.
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