TMI Blog2023 (12) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, this rule has been held to be ultra-vires to section 67 by Hon ble Supreme Court in the case of UNION OF INDIA AND ANR. VERSUS M/S. INTERCONTINENTAL CONSULTANTS AND TECHNOCRATS PVT. LTD. [ 2018 (3) TMI 357 - SUPREME COURT] . Hence, the demand of Service Tax on this count is clearly not sustainable. In view of the Hon'ble Apex Court judgment in Intercontinental case and the CBIC Circular No. 119/13/2009-ST dated 12.12.2009, the reimbursable expenses incurred by the appellant on behalf of the service recipient is not includible. The demand cannot be sustained. The impugned order is set aside - Appeal allowed. - HON BLE MR. RAMESH NAIR , MEMBER ( JUDICIAL ) And HON BLE MR. C. L. MAHAR , MEMBER ( TECHNICAL ) Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p charges 503895 0 0 0 0 Total 11022545 15136854 16099639 13917663 1377031 The case of the department is that all these expenses incurred during the course of providing CHA service, therefore the same is includible in the gross value of CHA services provided by the appellant. 2. Shri ND George, Ld. Counsel appearing on behalf of the appellant submits that the appellant are paying service tax correctly on the service charge of their service i.e. CHA service. All the other charges towards actual expenses which has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. Therefore, the appellant had bonafide belief that they are liable to pay service tax only on the value of CHA service and not on other reimbursable expenses. The appellant was registered with Service tax department and discharging service tax on their service charges therefore, there was no suppression of facts hence the demand is hit by limitation also. On the same ground, penalty was not imposable invoking the provisions of Section 80. 7. Shri Ajay Kumar Samota, Ld. Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 8. We have considered the arguments on both sides and perused the records. We find that revenue has disputed matter on the ground that as per the provisions of Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. The relevant para of the circular is reproduced below: 5. It is reported that disputes have arisen on the issue of inclusion of such reimbursable charges, which are currently pending at various stages of dispute settlement mechanism. Certain field formations have also issued communications, directing that charges on certain activities incurred by CHAs are not covered under exclusions available to pure agent . It is also reported that divergent practices as regards the records documentations, are being followed by the CHAs in relation to the charges for receiving services from other service providers as well as to their billings to their customers. This has added to the conflict and litigation. 6. With a view to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customer. Any other evidence like BE No./Container No./BL No./ packing lists is acceptable for the establishment of such nexus. Similar would be the case for statutory levies, charges by carriers and custodians, insurance agencies and the like; (f) Each charge for separate activities/services is to be covered either by a separate invoice or by a separate entry in a common invoice (showing the charges against each entry separately) issued by the CHA to his customer. In the latter case, if certain entries do not satisfy the conditions mentioned herein, the charges against those entries alone should be added back to the taxable value; (g) Any other miscellaneous or out of pocket expenses charged by the CHA would be includable in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
