2017 (11) TMI 1630 - HC - Service Tax

Service Tax on commission received - Contract for Maintenance and Handling Agreement - Policy Circular dated 20.04.2016 - Held that - Writ Petitions are partly allowed and the impugned communications dated 12.10.2016 26.10.2016 are set aside with a direction to the petitioners to pay service tax as demanded by the 3rd respondent and after payment, produce the invoice to the 2nd respondent for reimbursement, which shall be considered by the 2nd respondent strictly in accordance with Policy Circular No.240-04/2016 dated 20.04.2016 - petition allowed in part.

Summary

Issues:
1. Interpretation of Policy Circular No.240-04/2016 regarding service tax reimbursement.
2. Validity of communications issued by the 2nd respondent.
3. Obligations of Indian Oil Corporation in reimbursing service tax.
4. Relief sought by the petitioners regarding service tax payment.

Analysis:

1. The petitioners contested the communications from the 2nd respondent, arguing that it contravened Policy Circular No.240-04/2016. The circular specified that service tax reimbursement should be facilitated by Indian Oil Corporation for COCO operation payments, except for reimbursements to the service provider acting as a pure agent with contractual obligations in the name of IOC.

2. The petitioners maintained that the impugned communications disregarded the Policy Circular's guidelines, which necessitated Indian Oil Corporation to reimburse applicable service tax charged by the COCO operator or service provider. Consequently, they sought to invalidate the communications and compel Indian Oil Corporation to remit the service tax amount to the 3rd respondent.

3. The learned standing counsel representing Indian Oil Corporation acknowledged the oversight in issuing the communications without considering the Policy Circular. They agreed to set aside the communications and admitted that the petitioners' demand for direct payment of service tax to the 3rd respondent was premature. The standing counsel clarified that the Policy Circular mandated reimbursement, not direct payment by Indian Oil Corporation.

4. The judgment partially favored the petitioners by annulling the impugned communications and instructing them to pay the service tax as demanded by the 3rd respondent. Subsequently, the petitioners were directed to submit the invoice to the 2nd respondent for reimbursement, which would be evaluated in compliance with Policy Circular No.240-04/2016. The court emphasized that reimbursement consideration should occur within three weeks of the reimbursement application submission, with no additional costs incurred. The case was concluded, and related miscellaneous petitions were closed accordingly.