2015 (10) TMI 57 - AT - Service Tax

Waiver of pre deposit - Demand of service tax - Interest u/s 75 - Penalty u/s 77 & 78 - Business Auxiliary Service - Held that - Concept of revenue neutrality pleaded in the above illustrative transaction to be creative and attractive at first blush but wholly unacceptable as a normative principle. Entitlement to credit is predicated on the basis of such a facility provided under CENVAT Credit Rules, 2004. These Rules constitute a policy choice of the State. The entitlement of LICHFL to avail CENVAT credit depends upon provisions of the Rules, whether credit could be taken and the conditions upon which CENVAT credit may be availed under the Rules. The liability of the appellant to remit service tax for having provided BAS is clear and beyond dispute. Such liability is not eclipsed on the premise that had the appellant remitted service tax, LICHFL could have taken credit of the same. The whole schemata of taxation at the level of each taxable event would be rendered otiose and inoperative on application of the concept of revenue neutrality as a clog on the liability to service tax. - none warrant to apply this concept to legitimise an inference of immunity to tax of the appellant even for the normal period of limitation. Since the Interim Orders referred to above have applied the concept of revenue neutrality to grant waiver of pre-deposit, for the nonce we follow those decisions in respect of the extended period and the liability of the appellant for extended period but not for the normal period of limitation. - Partial stay granted.

Issues Involved:
1. Invocation of extended limitation period for service tax demand
2. Applicability of revenue neutrality principle in determining tax liability
3. Concept of immunity to tax based on revenue neutrality

Issue 1: Invocation of extended limitation period for service tax demand
The appellant appealed against an order passed by the Commissioner (Appeals), Delhi-I, confirming a service tax demand of Rs. 7,18,922 along with interest and penalties under the Finance Act, 1994. The appellant provided services as a Direct Sales Agent/Associate (DSA) to a company, and proceedings were initiated for providing Business Auxiliary Service (BAS) during a specific period. The appellant argued that the extended limitation period could not be invoked as they had informed the Department about their view of not being liable to service tax due to the service recipient remitting the tax. The appellant contended that the period in question was beyond the extended limitation period of five years.

Issue 2: Applicability of revenue neutrality principle in determining tax liability
The appellant claimed immunity to tax based on the principle of revenue neutrality, asserting that since the service recipient had remitted the service tax, there was no loss of revenue to the State if the appellant did not remit the tax on the services provided. The appellant argued that the service recipient could take credit for the tax reimbursed by the appellant, resulting in no loss to the State. However, the Tribunal found this argument unacceptable, stating that the liability to remit service tax was clear and not negated by the concept of revenue neutrality. The Tribunal emphasized that revenue neutrality should not impede the legislative competence to tax transactions at different stages.

Issue 3: Concept of immunity to tax based on revenue neutrality
The Tribunal analyzed the concept of revenue neutrality in the context of the appellant's case and found it to be creative but not a normative principle. While acknowledging the concept's attractiveness, the Tribunal emphasized that the liability to pay service tax should not be nullified by the idea of revenue neutrality. The Tribunal clarified that revenue neutrality could only apply if the liability to tax and the entitlement to credit resided in the same entity for the same taxable event. The Tribunal decided not to grant immunity to tax based on revenue neutrality for the normal limitation period but followed previous decisions for the extended period.

In conclusion, the Tribunal directed the appellant to pre-deposit a specific amount for the normal period of limitation and report compliance within a set timeframe, failing which the appeal would be dismissed. The judgment clarified the limitations of invoking the extended period for service tax demand and rejected the concept of immunity to tax based on revenue neutrality, emphasizing the clear liability to pay service tax despite any potential credit mechanisms available to the service recipient.

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