2012 (11) TMI 528 - AT - Service Tax

Fees paid to Mandated Lead Arrangers (MLAs) - Service tax demand with interest thereon & penalty u/s 76 & 78 - Held that - The Service Tax liability in the case has been fastened on the appellant under section 66A under the Reverse Charge Mechanism which came into force w.e.f. 18.4.2006. Therefore, for the period prior to 18.4.2006, the provisions of Section 66A will have not any application and out of demand of Rs, 8,05,24,006/- an amount of ₹ 2,79,08,777/- pertains to the period prior to 18.4.2006 and this demand is obviously not sustainable. Assessee not put on notice - Held that - In the SCN it has been clearly mentioned that the arrangement fees, agency fees, commitment fees or other fees are required to be paid under course of providing the above services for raising funds/loan on behalf of M/s Tata Steel Ltd. SCN also stated that on going through the agreements for providing loan or fund, it is found that different foreign institutions have been providing different service to M/s TATA in relation to the availment of loans or raising funds on behalf of M/s TATA. The above service provided by them is classifiable under Banking and other Financial services and taxable under clause (zm) of Section 65(105). Thus it prima facie appears that the appellants have been put to notice with regard to the activity undertaken by them and also linking the activity undertaken by them with Service Tax law provisions. The rationale for classification of the service under Banking and Financial Services has been clearly spelled out. The appellant had not made out a prima facie case for complete waiver of pre-deposit thus directed to make a pre-deposit of ₹ 1 crore towards dues adjudged within a period of eight weeks from order date - against assessee.

Summary

Issues:
Service Tax liability on fees paid to Mandated Lead Arrangers (MLAs) for syndicated loans, Time limitation for demand, Classification of services under Banking and Financial Services, Nexus between arrangement and lending services, Suppression of facts by the appellant, Financial hardship plea, Balance of convenience.

Analysis:

Service Tax Liability on Fees Paid to MLAs:
The appellant borrowed money through syndicated loans and paid arrangement fees to overseas Banks acting as MLAs. The Department demanded Service Tax on these fees under the reverse charge mechanism. The appellant argued that the show-cause notice did not specify the taxable service category, making the demand unsustainable. However, the Tribunal found that the notice adequately linked the activity to Banking and Financial Services, rejecting the appellant's contention.

Time Limitation for Demand:
The appellant claimed the demand was time-barred as the notice was issued after a significant delay from the period in question. The Department argued that the appellant suppressed facts by not disclosing the engagement of MLAs for obtaining loans, justifying the extended time period for demand. The Tribunal agreed with the Department, ruling that the appellant's failure to disclose amounted to evasion, allowing the extended time period for demand.

Classification of Services under Banking and Financial Services:
The Tribunal analyzed the nature of services provided by the MLAs and their nexus to Banking and Financial Services. It noted that the show-cause notice clearly identified the services as falling under this category. The Tribunal also highlighted the close relationship between arrangement and lending services, concluding that the appellant's activities could be classified under Banking and Financial Services.

Nexus between Arrangement and Lending Services:
The Tribunal observed that many lenders who provided the syndicated loan also acted as arrangers, indicating a close connection between arrangement and lending. This led to the conclusion that the appellant's activities were intertwined with both aspects, supporting the classification under Banking and Financial Services.

Suppression of Facts by the Appellant:
The Tribunal emphasized the importance of disclosing relevant information to tax authorities. The appellant's failure to inform the Department about engaging MLAs for obtaining loans was viewed as suppression of facts, justifying the extended time period for demand.

Financial Hardship Plea and Balance of Convenience:
The Tribunal noted that the appellant did not plead financial hardship. Citing a relevant High Court judgment, it held that the balance of convenience favored the revenue. Consequently, the Tribunal directed the appellant to make a pre-deposit towards the dues adjudged, with a deadline for compliance.

In conclusion, the Tribunal upheld the Service Tax liability on fees paid to MLAs, rejected the time limitation argument, classified the services under Banking and Financial Services, emphasized the nexus between arrangement and lending services, noted the suppression of facts by the appellant, and considered the balance of convenience in directing the pre-deposit.