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2015 (7) TMI 1096 - CESTAT NEW DELHI

2015 (7) TMI 1096 - CESTAT NEW DELHI - 2016 (41) S.T.R. 569 (Tri. - Del.) - Demand of Service tax - Manpower Recruitment or Supply Agency - Appellant contended that it was only entitled to 5% service charges on actual payment made to labour by SZDUSSL and on such service charges, the service tax has already been deposited. No suppression or wilful mis­statements and it was its bona fide belief that the service tax was being rightly discharging by it.

Held that:- it is not in dispute t .....

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s of this case, we are of the view that adequate ground exists to sustain the contention of the appellant that there was no wilful suppression or mis-statement of facts on its part with the intention to evade service tax. The entire demand pertains to the period beyond the normal period of one year and hence is hit by time bar. Therefore, the demand is set aside. - Decidde in favour of appellant - ST/58642/2013-CU(DB) - Final Order No. ST/A/52099/2015-CU(DB) - Dated:- 3-7-2015 - Justice G. Raghu .....

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d Manpower Recruitment or Supply Agency service to M/s. Sriganganagar Zila Dugdh Utpadak Sahakari Sangl Ltd. (SZDUSSL). 2. The appellant contended in its appeal that it was only entitled to 5% service charges on actual payment made to labour by SZDUSSL and on such service charges, the service tax has already been deposited. It stated that there was no suppression or wilful mis­statements and it was its bona fide belief that the service tax was being rightly discharging by it. The appell .....

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as 5% commission, the service tax was payable only on that amount. Even the agreement with SZDUSSL provided for reimbursement of service tax only on the amount of commission. Ld. Counsel stated that the fact that it paid service tax on the amount of commission received proves its bona fides. 3. Ld. Departmental Representative on the other hand stated that the appellant did not respond to the letters and did not give any information, which was eventually obtained from the service recipient, .....

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he value of taxable service will be the gross amount charged by the service provider. It is not in dispute that the gross amount charged for the service was inclusive of the amount of payment made to the labourers and therefore the service tax is leviable on such gross amount and not merely on the amount of commission to which the appellant was entitled. Incidentally, the C.B.E.& C. s view is also in conformity with this view as is evident from its Circular No. B1/6/2005-TRU, dated 2-7-2005, .....

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rt of the consideration and hence form part of the gross amount : 5. As regards the issue of time bar, we find that the Commissioner (Appeals) in the impugned order has upheld the invocation of the extended period only in terms of para 11 of the impugned order, which is reproduced below :- 11. Since the appellant have wilfully suppressed the facts of rendering taxable service and also suppressed the taxable value with intent to evade payment of service tax. Further, neither they had ta .....

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The fact that the appellant charged service tax from the service recipient only on the amount of commission actually adds credence to the appellant s contention that it genuinely believed that the service tax was chargeable only on the amount of commission because it did not stand to gain anything by putting in the agreement that the service tax is recoverable from the service recipient only on the commission received and not on the entire amount. That it paid the service tax recovered from the .....

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