2016 (12) TMI 1128 - AT - Service Tax

General Insurance Service - re-insurance - service provided by the appellant as co-insurer along with lead insurer to the insured, whether attracts service tax or not? - Held that - circular has been issued by the Ld. Commissioner of Service Tax-I, Mumbai vide F.No.ST/HQ/EA-2000/GR.01/TATA/23/2011/2308 dated 10.09.2013 wherein the service of co-insurance has been accepted and clarified that the said business is different from the insurance. There is no separate service rendered by the lead insurer to the co-insurer or otherwise relating to insurance business, except for certain administrative matters. The only service rendered is between the co-insurers and the policy holder. For this service, the insurance premium is received in full by the lead insurer and after payment of service tax on the entire amount, the rest is distributed among the co-insurer on the basis of their agreed shares - the entire insurance premium has already suffered tax at the time of its receipt in the hands of the lead insurer - demand set aside - penalty set aside - appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Demand of service tax on general insurance service provided by the appellant as co-insurer along with lead insurer.

Analysis:
The case involved a demand of service tax of ?362.94 Crores along with penalties imposed on the appellant for providing general insurance service as a co-insurer along with the lead insurer. The appellant argued that the lead insurer is responsible for collecting the entire premium along with service tax, and they have already discharged the service tax liability on the entire premium amount. The appellant also presented certificates from Chartered Accountants of lead insurers to support their claim. The appellant contended that coinsurance should not be equated with reinsurance, and the liability of service tax cannot be imposed on them as the entire premium has already been taxed. The appellant also highlighted that there was no contractor-subcontractor relationship between the insurers. The appellant further relied on previous orders where similar demands were dropped, and no dispute was raised for subsequent assessment periods.

The Revenue, on the other hand, argued that each insurance company, including the co-insurers, is liable to comply with service tax provisions individually, similar to a subcontractor executing a job for a contractor. They claimed that the appellant failed to provide documentary evidence to prove compliance with service tax on the entire premium received by the lead insurer.

After considering both sides, the Tribunal found that the dispute arose after an amendment to the definition of insurer in the Finance Act, 1994. Previous orders and circulars supported the appellant's position, stating that the lead insurer had already discharged the service tax liability on the entire premium received. The Tribunal observed that no separate service was rendered by the lead insurer to the co-insurer, and the co-insurance agreement only regulated the sharing of risk and premium among the insurers. As the entire premium had already suffered tax at the time of receipt by the lead insurer, the Tribunal set aside the impugned order and the penalties imposed under Section 77 and 78.

In conclusion, the Tribunal allowed the appeal in favor of the appellant, emphasizing that the service tax liability had been discharged by the lead insurer, and there was no basis for imposing additional tax on the co-insurers.