TMI Blog2014 (1) TMI 1555X X X X Extracts X X X X X X X X Extracts X X X X ..... e Finance Act, the appellants are liable to pay service tax on the gross amount received - Decided against assessee. - ST/85532/13-Mum - Final Order No. A/2242/2013-WZB/C-I(CSTB) - Dated:- 10-10-2013 - S S Kang And P K Jain, JJ. For the Appellants : Shri. A P Kolte, Adv. For the Respondent : Shri V K Agarwal, Additional Commissioner (AR) PER : S S Kang Heard both sides. 2. The appellant filed this appeal against the order-in-original dated 29.11.2012 passed by Commissioner of Central Excise Customs, Aurangabad. The appellants undertook the activity of supply of manpower to various clients. The appellants are not disputing the liability of service tax in respect of supply of manpower. The appellants were paying service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lants, whereby the facts were disclosed to the Revenue. In these circumstances, as the Revenue was aware that the appellants were paying service tax on the service portion only, in the year 2007. Therefore the demand by issuing show cause notice on 14.9.2011 is time barred. The appellants also submitted that during the period in dispute, audit was conducted and vide letter dated 15.9.2008, the audit objection was conveyed to the appellants, therefore the Revenue was aware in respect of the factual position hence the allegation of suppression with intent to evade payment of tax is not sustainable, therefore the whole demand is time barred. 5. The appellants also argued that the demand is not rightly quantified. The contention is that for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to pay appropriate tax. During this period, the audit para was also conveyed to the appellants. The appellants requested to the textile mills for payment of service tax as demanded by the Revenue, which is evident from the letter dated 20.2.2008 and the appellants informed the jurisdictional Revenue authorities that the matter has been taken up with the textile mills. The Revenue also submitted that as the appellants are paying service tax on the gross amount received from the service recipient in respect of other clients, therefore it cannot be said that the appellants were not aware that the service tax is to be paid on gross amount hence there is a clear suppression on the part of the appellants with intent to evade tax. 8. In respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... doing so. In respect of the decision of the Hon'ble Delhi High Court in the case of Intercontinental Consultants Technocrats Pvt. Ltd. (supra), the Hon'ble High Court held that Rule 5(1) of the Service Tax Rules, which provides inclusion of expenditure or cost incurred by the service provider in the course of providing taxable service in the value for the purpose of charging service tax is ultra vires to that extent only, as held in para 18 of the judgment. In the present case, we find that Section 67 of the Finance Act provides that the assessee is liable to pay service tax on the gross amount received in respect of the service provided. In the present case, the service is of supply of manpower. The case before the Hon'ble Delhi High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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