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TMI Blog2025 (5) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 17.02.2015 by the Commissioner of Service Tax (Appeals-II), Chennai who have upheld the Orders-in-Original No. 28/2010 dated 01.12.2010 and No. 15/2011 dated 27.12.2011. The Assistant Commissioner of Service Tax vide in his Order-in-Original dated 01.12.2010 has confirmed the demand of service tax of Rs.1,52,640/- along with interest and imposed equivalent penalty under Section 78 of the Finance Act, 1994. Further, the Deputy Commissioner of Service Tax vide in his Order-in-Original dated 27.12.2011 has confirmed the demand of service tax of Rs.52,363/- along with interest and also imposed a penalty under Section 76 of the Finance Act, 1994. 2.1 Brief facts of the case are that the Appellant has taken the Service Tax Registration for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st and for imposition of penalty. 2.4 On adjudication of these two Show Cause Notices, the Original Adjudicating Authorities have passed the Orders-in-Original dated 01.12.2010 and 27.12.2011 confirming the demand of tax plus interest and also imposed penalty. 2.5 When the Appellant filed appeals against these Orders-in-Original, the Ld. Commissioner (Appeals) has upheld the orders of the Original Adjudicating Authority. Being aggrieved, the Appellant came on appeal before this Tribunal. 3.1 The Ld. Advocate Mr. M. Karthikeyan representing the Appellant has submitted that it was incorrectly recorded at Paragraph 11 of the impugned Order-in-Appeal Nos. 63&64/2015 (STA-II) dated 17.02.2015 that "In the present case, charges towards air tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Motor Co. Ltd. [2021 (9) TMI 81 - CESTAT CHENNAI)] v. Toyota Kirloskar Auto Parts (P) Ltd. [2011 (21) STR 583 (Tri.-Bang.)] 3.5 It is further submitted that even if the air ticket charges are added to the taxable value, the Appellant would be eligible to take credit of the entire tax paid and as such, the question of suppression or any manner of intentional evasion would not arise. As there is no revenue loss to the Government Exchequer, the demand raised invoking extended period is not sustainable. 4. The Ld. Authorized Representative Mr. Harendra Singh Pal representing the Department has supported the findings in the impugned order dated 17.02.2015. He has submitted that an expenditure of Rs.18,13,925/- towards air travel was spent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provider cannot constitute the consideration and so, no tax is payable. Rule 7 of Service Tax (Determination of Value) Rules, 2006 is required to be referred to in order to arrive at the correct value of taxable services provided from outside India and the relevant Rule is reproduced below: - "7. Actual consideration to be the value of taxable service provided from outside India (1) The value of taxable service received under the provisions of Section 66A, shall be such amount as is equal to the actual consideration charged for the services provided or to be provided. (2) Notwithstanding anything contained in sub-rule (1), the value of taxable services specified in clause (ii) of rule 3 of Taxation of Services (Provided from Outside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Myanmar and the expenses to be incurred for travelling tickets, telephone charges, postage, hotel accommodation, fooding, etc.; appellant reimbursed the expenses incurred by Shri S. Gupta on the actuals as per the bills raised by Shri S. Gupta. It is the case of the Revenue that the appellant is liable to pay service tax under the reversecharge mechanism under the category of 'business auxiliary services' as it is undisputed that Shri S. Gupta has rendered services of promoting and marketing of the appellant's goods. 4. The learned counsel brings to our notice the factual matrix of the case and takes us to the e-mails which have been sent by Shri S. Gupta to the appellant. It is his submission that these e-mails indicate that they were a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upta by the appellant. If the appellant has not paid any commission and has only reimbursed the actual expenses incurred, in our view, the judgment of the Hon'ble High Court of Delhi in the case of Intercontinental Consultants & Technocrafts Pvt. Ltd. (supra) will directly apply and the said expenses cannot be taxed under 'business auxiliary service'. 8. In view of the foregoing, we hold that the impugned order is unsustainable and liable to be set aside and we do so. 5.14 We also find that provisions of Rule 7(1) of the Service Tax (Determination of Value) Rules, 2006 would apply to this case. The said Rule 7(1) is reproduced below : "7. Actual consideration to be the value of taxable service provided from outside India. - (1) The va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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