TMI Blog2011 (5) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... cidence of taxation at the relevant time is fixed taking into account such multi-level incidence. What is not provided by law cannot be extended by judicial interpretation - if the godown is taken on rent by the Appellant for discharging his obligations under the contract, rent for godown will form part of the value even if it is reimbursed separately by the client - Matter remanded to re-examine the facts. - ST/637 & 652 OF 2007 - ST/204-205 OF 2011 - Dated:- 25-5-2011 - MS. ARCHANA WADHWA, MATHEW JOHN, JJ. A.K. Batra for the Appellant. K.K. Jaiswal for the Respondent. ORDER Mathew John, Technical Member. The Appellant in Appeal No. ST-637/2007 was providing clearing and forwarding services to M/s. Whirlpool India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts should also be added to the value of commission declared to have been received by the appellants and service tax should have been paid on such gross receipts. 3. A show-cause notice dated 3-7-06 was issued demanding service tax amounting to Rs. 36,97,509 and education cess amounting to Rs. 20,240 payable for the period April, 2001 to September, 2005. Interest as applicable under section 75 of the Finance Act, 1994 was also demanded. Further, there was a proposal for imposing penalty under section 76 and 77 of the Finance Act, 1994. The show-cause notice was adjudicated vide order dated 3-4-2007 which confirmed the tax liabilities demanded under the show-cause notice along with section 75. Further penalties were imposed under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt to double taxation on the same service. 7. During the relevant time, clearing and forwarding agent was defined under section 65(25) of the Finance Act, 1994 which reads as under : "Section 65(25) clearing and forwarding agent means any person who is engaged in providing any service, either directly or indirectly, connected with the clearing and forwarding operations in any manner to any other person and includes a consignment agent." 8. The provision regarding value on which tax was to be paid was contained was in section 67 of Finance Act, 1994 which read as under : "For the purposes of this Chapter, the value of any taxable service shall be the gross amount charged by the service provider for such service rendered by him." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demand raised in the show-cause notice is not maintainable at all. They also relied on the following case laws in support of their arguments : (i) Nazir Co. v. CCE [Final Order No. 1196/2008, dated 15-10-2008] (ii) U.M. Thariath Co. v. CCE [2008] 12 STT 378 (Bang. - CESTAT) (iii) Reliance Industries Ltd. v. CCE [Final Order Nos. A/1237-1239/2008-WZB/Ahd, dated 23-6-2008] (iv) Malabar Management Services (P.) Ltd. v. CST [2008] 14 STT 107 (Chennai - CESTAT) 11. The learned DR on the other hand, argues that as per section 67 of Finance Act, 1994, the value of any taxable service was to be gross amount charged by the service provider for such service. He basically invites attention to Rule 6(8) of Service Tax Rules, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indispensable and inevitably incurred to provide a service, such cost should essentially form part of cost of service itself and shall contribute to value of taxable service. 13. This is clearly a case where the Appellant is trying to reduce incidence of service tax by accounting his remuneration as a reimbursable expense. For this they rely on certain circulars issued by CBEC in relation to certain types of expenses in relation to other services and ignores provisions of rule 6(8) of the Service Tax Valuation Rules, 1994. The provisions of Rules should get precedence of clarifications issued by CBEC and that too in relation to other matters. The essential criteria to decide whether amounts received from a person availing service will be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put services which fell in the same category as the output service. The incidence of taxation at the relevant time is fixed taking into account such multi-level incidence. What is not provided by law cannot be extended by judicial interpretation. 15. The Appellant has a case in the matters relating to the pre-dispatch inspection, octroi and detention charges also. These expenses are not towards any activity that will constitute the service rendered by the Appellant. Abatement from gross receipts received shall be allowed for these expenses also subject to production of vouchers for such expenses. 16. In the case of godown rent, there can be a dispute because the godown might be actually hired by M/s. Whirlpool and the Appellant is payin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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