9911796707
TMI Blog2025 (2) TMI 1163X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the appellants are engaged in the provision of 'Information Technology Software Service' (ITSS) and in the course of audit, it was noticed that they have not paid certain Service Tax under Reverse Charge Mechanism (RCM) against import of certain services, as also irregularly availed Cenvat credit of input services. They were also found to have short paid Service Tax under the category of 'Business Support Service' (BSS) by claiming irregular deduction under Pure Agent clause. 3. Learned Advocate for the appellant has submitted that they have already paid the entire tax amount along with interest in respect of alleged short payment of Service Tax on import of services as well as for irregular availment of Cenvat credit amounting to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Vs Tirupathi Fuels Pvt Ltd [2017 (7) GSTL 142 (AP)] affirmed by the Hon'ble Supreme Court in [2018 (12) GSTL J179 (SC)]. They have also challenged the confirmation on the grounds that demand itself is barred by limitation as the department has not been able to adduce any positive act on the part of them to establish that they have willfully mis-declared or willfully suppressed any information. In their case, they had disclosed the amount received as pure agent in the ST3 returns filed by them. 5. Learned AR for department reiterates the findings of the Adjudicating Authority. 6. Heard both sides and perused the records. 7. Since there are three issues, on which the demands have been confirmed by the Adjudicating Authority, we take up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , as also that this provision would not be applicable in case there is short-payment, etc., by the reasons of fraud, collusion, willful mis-statement, suppression of facts or contravention of any provision with intent to evade payment of Service Tax. On going through the impugned order, the Adjudicating Authority at Para 15.2 has only said that they have short paid Service Tax on import of service under RCM as well as availed Cenvat credit, which was not due to them and that they had suppressed the facts in the returns filed by them. Though there was enough clarity about the tax liability and admissibility of Cenvat credit, the appellants preferred to avail undue benefit, which indicates their intention to defraud the Revenue. He has furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongly claiming deduction under Pure Agent clause. 10. It is an admitted position that they were getting certain reimbursement from M/s BSG Services India Pvt Ltd with whom they were having a 'transaction service agreement' for providing infrastructure support and other support services. We have perused the letter dt.30.03.2007, wherein, inter alia, M/s BSG has informed them that in relation to certain expenses relating to advertisement, security services, telephone, maintenance, head hunter fees, courier charges, vehicle maintenance, etc., they would be liable for payment in relation to all services procured by the appellant on their behalf and it will be reimbursed to them on a monthly basis to the extent the said expenditure or costs are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d costs incurred by the service provider as pure agent of the recipient of service was required to be excluded from the value of taxable service, subject to fulfillment of certain conditions. The Adjudicating Authority has examined these conditions and came to the conclusion that the appellants have not fulfilled all the conditions enumerated under Rule 5(2) to justify the claim of deduction as pure agent. 12. The issue regarding inclusion of reimbursable expenditure or costs in the gross value of consideration received for providing taxable service or otherwise is no longer res integra in view of the judgment in the case of Union of India Vs Intercontinental Consultants and Technocrats Pvt Ltd (supra). Hon'ble Supreme Court at Para 21, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the nature of reimbursement and the dispute was only that they were not acting as pure agent, as required under Rule 5(2). Since it is clearly held that reimbursable amount for the period prior to 15.05.2015 cannot be included in the gross value, therefore, the Service Tax demanded on such reimbursable expenditure or costs cannot sustain and to that extent, the impugned order is liable to be set aside. We have not dealt with other arguments for setting aside the demand in view of the finding that it is not sustainable on merit itself.
13. Therefore, in essence, the impugned order cannot be sustained and is therefore, set aside.
14. Appeal allowed.
( Pronounced in the Open Court on 21. 02. 2025 ) X X X X Extracts X X X X X X X X Extracts X X X X
|
