TMI Blog2022 (7) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of provisions of Section 67 itself, such reimbursable expenditure or cost would also form part of valuation of taxable services for charging service tax. The impugned demand raised by the Ld. Commissioner cannot be sustained, except for the short payment of service tax which has already been deposited by the Appellant - Penalty set aside - appeal allowed. - Service Tax Appeal No.166 of 2010 - FINAL ORDER NO. 75378/2022 - Dated:- 6-7-2022 - SHRI P.K. CHOUDHARY, MEMBER (JUDICIAL) AND SHRI P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri R.G. Sheth, Advocate for the Appellant (s) Shri A.Roy, Authorized Representative for the Respondent (s) ORDER The instant appeal is directed against the Order-in-Original dated 04.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 has been held to be ultra vires by the Hon ble Supreme Court in the case of UOI vs. Intercontinental Consultants Technocrats Pvt Ltd [2018 (10) GSTL 401 (SC)]. He also relied on various decisions of the Tribunal which has consistently held that reimbursable expenses cannot be included in the value of taxable services as below: Sai Shipping Services vs. CCE Jaipur 2011 (22) STR 153 (Tri-Del) Cargolinks vs. CCE Mangalore 2010 (19) STR 548 (Tri-Bang) Reliance Industries Ld. Vs. CCE 2008 (12) STR 345 (Tri-Ahm) GAC Shipping (India) Pvt Ltd vs. CCE 2008 (9) STR 524 (Tri Bang) The Appellant has also contested the demand on the ground of limitation. 5. The Ld. Authorized Representative for the Department reiterated the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the value of taxable service shall be the gross amount charged by the service provider for such service and the valuation of tax service cannot be anything more or less than the consideration paid as quid pro qua for rendering such a service. 25 . This position did not change even in the amended Section 67 which was inserted on May 1, 2006. Sub-section (4) of Section 67 empowers the rule making authority to lay down the manner in which value of taxable service is to be determined. However, Section 67(4) is expressly made subject to the provisions of sub-section (1). Mandate of sub-section (1) of Section 67 is manifest, as noted above, viz., the service tax is to be paid only on the services actually provided by the service provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued so, as we find that this is a substantive change brought about with the amendment to Section 67 and, therefore, has to be prospective in nature. On 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of 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 legi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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