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2013 DIGILAW 2239 (MAD)

Commissioner of Service Tax Chennai v. Sangamitra Services Agency

2013-06-27

CHITRA VENKATARAMAN, K.B.K.VASUKI

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JUDGMENT :- Chitra Venkataraman, J. 1. The Revenue is on appeal as against the order of the Customs, Excise and Service Tax Appellate Tribunal passed in No.902/07 dated 24.07.2007 raising the following substantial question of law :- "1. Whether the decision of Tribunal that the reimbursable expenses received by the assessee need not be added to the taxable value related to clearing and forwarding agents service is correct, when the Rule 6(8) of Service Tax Rules, 1994 stipulates that Gross amount of remuneration or commission should be the taxable value in relation to the services provided by a Clearing and Forwarding Agent ?" 2. Inspite of service of notice on the assessee, there is no representation either in person or through counsel. After hearing the learned Standing Counsel for the Revenue and on going through the records, the present order is passed. 3. The Customs, Excise and Service Tax Appellate Tribunal, as a matter of fact found in this case that various charges, which were alleged by the Revenue, to be includible in the taxable value of Carrying and Forwarding service were reimbursed by the principals on the basis of actuals. Those amounts received by the assessee from the principals as remuneration/commission for service of clearing and forwarding the goods has been rightly assessed as taxable value and tax paid. 4. It is seen from the documents placed before this Court that the show cause notice pointed out that the various charges received by the assessee from the Principal towards freight, labour, electricity, telephone etc were required to be added to the value of the taxable service in relation to the services provided by a Clearing and Forwarding agent of the Principal. The assessee contended that as per Rule 6(8) of Service Tax Rules 1994, only on the gross amount of remuneration or commission would be paid to them by their principals for the service of clearing and forwarding ; since the expenses were incurred by the assessee and reimbursed to them by their principals for the service of clearing and forwarding of excisable goods, the same could not enter into the taxable value under Rule 6(8) of the Service Tax Rules, 1994 read with 67 of the Finance Act, 1994. The assessee further contended that the inclusion of such reimbursed expenditure was bad in law. 5. The assessee further contended that the inclusion of such reimbursed expenditure was bad in law. 5. In accepting the case of the respondent/assessee, the Customs, Excise and Service Tax Appellate Tribunal referred to the decision rendered by the Tribunal in the case of Sri Sastha Agencies Pvt. Ltd., Vs. Asst. Commissioner reported in 2007 (6) STR 185 (Tri.Bang), holding that no element other than remuneration received by a Clearing & Forwarding agent from their principal was to be included in the taxable value of the service. Thus, the Tribunal allowed the appeal. 6. Aggrieved by this, the present appeal has been preferred by the Revenue. Learned Standing counsel appearing for the Revenue submitted that as per the provisions of Rule 6(8) of Service Tax Rules, 1994, the value of taxable service in relation to the services provided by the Clearing and Forwarding Agent to the client for rendering services of Clearing and Forwarding operations, in any manner, shall be deemed to be the gross amount of remuneration or commission (by whatever name called) paid to such agent by the client, engaging such agent. He further submitted that considering the charges collected towards freight, labour, electricity, telephone etc., in connection with clearing and forwarding services, the same would form part of remuneration / commission. 7. We do not agree with the said contention. In the absence of any material to show the understanding between the Principal and the Client that the Commission payable by the principal was all inclusive, it is difficult to hold that the gross amount of remuneration/commission would nevertheless include expenditure incurred by the assessee providing the services; that all incidental charges for running of the business would also form part of the remuneration or Commission (by whatever name called). The phrase "by whatever name called" must necessarily have some link or reference or nature to the receipt of remuneration or commission. Thus, if a receipt is for reimbursing the expenditure incurred for the purpose, the mere act of reimbursement, per se, would not justify the contention of the Revenue that the same, having the character of the remuneration or commission, deserves to be included in the sum amount of remuneration / Commission. 8. Thus, if a receipt is for reimbursing the expenditure incurred for the purpose, the mere act of reimbursement, per se, would not justify the contention of the Revenue that the same, having the character of the remuneration or commission, deserves to be included in the sum amount of remuneration / Commission. 8. As per Rule 6(8) of Service Tax Rules, 1994, the gross amount referred to therein would apply to receipts of such sum, which would bear the character of remuneration or commission, in that, the said sum is brought under the head "receipts". 9. As far as the present case is concerned, when the Revenue's case does not rest on a contention that the expenditure incurred has the character to fall under the expression "remuneration or commission", we have no hesitation in rejecting the Revenue's contention. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.