Order Date – 30 January 2024

Parties: M/s ITD ITD Cem Joint Venture Vs The Commissioner of Central Excise, Rohtak

Facts –

• The Appellant, M/s ITD ITD Cem Joint Venture, engaged foreign service providersfor technical support in the execution of work related to tunnel boring machine related to works contract in the Delhi Metro Rail Corporation.
• A show-cause cum demand notice dated 02.09.2011 was issued to the appellants demanding service tax for the period 2008-09 to 2010-11 alleging that the appellants have not t include the TDS amount for discharging the service tax under Reverse Charge Mechanism on the services availed from the foreign suppliers.
• The demanded duty was confirmed along with interest and equal penalty in addition to penalty under Section 77 of Finance Act, 1994.

Issue – 

• Whether TDS paid by the appellants should be included in the gross amount for the purpose of calculation of service tax?

Order –

• The Tribunal observed that in the judgment of the Chennai Bench of the Tribunal in the case of TVS Motor Company by referring to the judgments of the Tribunal in the case of Indian Additives Ltd. and Centre for High Technology and concludes that the amount of TDS paid is not includable in the gross value for the purpose of payment of service tax.
• The facts of the case are not different than that of TVS Motor Company or the case decided by the Commissioner (Appeals) in favour of the appellants in their own case for the subsequent period. Therefore, the issue is no longer res integra.
• Moreover, there is nothing in the show-cause notice and the impugned order to prove any of the ingredients like suppression, mis-statement etc. with intent to evade payment of service tax; therefore, no case is made for invocation of extended period.
• In view of the above appeal is allowed.