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2019 (2) TMI 1248 - CESTAT CHENNAIValuation - non-inclusion of TDS amount in assessable value - reverse charge mechanism - services received from foreign service provider - Held that:- 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 - reliance placed in the case of M/S. MAGARPATTA TOWNSHIP DEVELOPMENT AND CONSTRUCTION CO. LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-III [2016 (3) TMI 811 - CESTAT MUMBAI] - the demand of service tax alleging that TDS has not been included in the gross value is incorrect on facts and cannot sustain. Valuation - inclusion of the expenses of air fare, accommodation service and other incidental expenses incurred for the foreign service provider in assessable value - Held that:- Service tax is payable on the gross amount charged as consideration which will include the expenses for rendering service also. The appellant has not been able to establish that these expenses are reimbursable expenses. When the expenses are incurred for providing the services, these are definitely includable in the value for discharging the service tax liability - demand upheld. Classification of services - GTA Services or clearing and forwarding agency service? - appellant has contended that the services were provided as part of clearing and forwarding service - Held that:- It is seen that the CFS agent has charged the appellant separately as freight charges for GTA service. When the appellant has paid the freight charges for transportation of the goods, they are liable to discharge the service tax under this category as service recipient - demand set aside. Penalty - Held that:- It is seen that they have been paying service tax as well as filing the returns regularly. The non-payment of service tax under these two categories was with regard to bonafide belief as to the interpretation that the appellant entertained - penalty do not sustain and is set aside. Appeal allowed in part.
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