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M/s Sherock Versus CCE, Bhopal

2016 (6) TMI 318 - CESTAT NEW DELHI

Extended period of limitation - Demand of Service tax - including both fixed and variable amounts of commission in the taxable value - Clearing and Forwarding agent services - Suppression - Held that:- the Revenue has taken up an identical issue regarding valuation of the services covering an earlier period by invoking the suppression clause and claimed the extended time limit for demand of service tax. On an identical issue invoking suppression and extended time limit for one more time clearly .....

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functioned as a pure agent of the service receiver and hence the amount reimbursed by M/s Lafarge India Limited cannot form part of value of taxable service. The first appellate authority has clearly given a finding that the appellant has not satisfied the conditions prescribed in Rule 5 of the Service Tax (Determination of Value) Rules, 2006 to satisfy the criteria for a pure agent. Therefore, no reason found to defer from that view and hence uphold the merits of the order. However, the demand .....

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d against Order-in-Original dated 28.08.2008 passed by the Additional Commissioner, Bhopal-II. The appellant was providing services of a Clearing and Forwarding agent to M/s Lafarge India Limited. As per the contract, the appellant was getting their remuneration in two parts - fixed amounts for activities such as loading/ unloading material from Railway wagon or trucks and variable amounts for other activities such as transportation by road. The appellant was paying service tax only on the varia .....

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is of the fact that the Revenue had already taken up an identical issue vide show cause notice No. 652 dated 24.04.2007 covering the period October, 2001 to March, 2002 alleging suppression and hence the Revenue cannot invoke suppression clause one more time for the same issue. They have also claimed that the department has been kept informed (with a copy of the agreement with M/s Lafarge India Limited) that service tax is being discharged only the variable portion of commission. On merit the ap .....

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on clause and claimed the extended time limit for demand of service tax. On an identical issue invoking suppression and extended time limit for one more time clearly cannot be done and hence the demand for the period beyond the normal time limit available under Section 73 of the Finance Act, 1994 fails. 5. To decide the merits of the issue, the valuation of taxable services is to be determined with reference to Section 67 of the Finance Act, 1994 read with Service Tax (Determination of Value) Ru .....

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