TMI Blog2019 (1) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... ice tax - appeal allowed - decided in favor of appellant. - Appeal Nos.: ST/00254/2012 & ST/40025/2013 - Final Order No. 43178-43179/2018 - Dated:- 13-12-2018 - Shri Madhu Mohan Damodhar, Member (Technical) And Shri P. Dinesha, Member (Judicial) Shri. N. Anand, Advocate for the Appellant Ms. T. Usha Devi, DC (AR) for the Respondent ORDER Per P. Dinesha : The assessee has filed these appeals against the Orders passed by the Commissioner (Appeals) inter alia challenging the demand of service tax on the expenses reimbursed. 2.1 The appellants are engaged in the business of sales of Light Motor Vehicles and Spares and Servicing/Repair of Light Motor Vehicles of TOYOTA at their authorized service station. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alue of spares reimbursed was attributable to the cost of goods which would not form part of the taxable value and has even referred to Rule 6(1) of the CENVAT Credit Rules, 2004 which according to him, made the position clear that the reimbursements received by the Authorized Service Stations from the manufacturers of motor vehicles, etc., was required to be included in the value of taxable service. The assessee/appellant having not met with success in its first appeals before the Commissioner of Customs, Central Excise and Service Tax (Appeals), Coimbatore, has filed the present appeals. 3. Today when the matter came up for hearing, Ld. Advocate Shri. N. Anand appeared on behalf of the assessee/appellant while Ld. DC (AR) Ms. T. Usha D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @ 12% of the value of taxable services referred to in sub-clauses of Section 65 and collected in such manner as may be prescribed. 23. Obviously, this Section refers to service tax, i.e., in respect of those services which are taxable and specifically referred to in various sub-clauses of Section 65. Further, it also specifically mentions that the service tax will be @ 12% of the value of taxable services . Thus, service tax is reference to the value of service. As a necessary corollary, it is the value of the services which are actually rendered, the value whereof is to be ascertained for the purpose of calculating the service tax payable thereupon. 24. In this hue, the expression such occurring in Section 67 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, viz., the service tax is to be paid only on the services actually provided by the service provider. 26. It is trite that rules cannot go beyond the statute. In Babaji Kondaji Garad, this rule was enunciated in the following manner : Now if there is any conflict between a statute and the subordinate legislation, it does not require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the byelaw, if not in conformity with the statute in order to give effect to the statutory provision the Rule or bye-law has to be ignored. The statutory provision has precedence and must be complied with. 27. The aforesaid principle is reiterated in Chenniappa Mudaliar holding that a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this aspect of the matter, we may usefully refer to the Constitution Bench judgment in the case of Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited [(2015) 1 SCC 1] wherein it was observed as under : 27. A legislation, be it a statutory Act or a statutory rule or a statutory notification, may physically consists of words printed on papers. However, conceptually it is a great deal more than an ordinary prose. There is a special peculiarity in the mode of verbal communication by a legislation. A legislation is not just a series of statements, such as one finds in a work of fiction/non-fiction or even in a judgment of a court of law. There is a technique required to draft a legislation as well as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the then existing law. 29. The obvious basis of the principle against retrospectivity is the principle of fairness , which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita-Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject because aforesaid legal position cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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