2018 (8) TMI 175 - AT - Service Tax

Supply of manpower and agency service - partial reverse charge mechanism - Non-payment of 75% of service tax applicable on invoice value - payment of 100% taxable charges on services were individually collected by the service providers and they have deposited the same in the department as an agent of appellant. - N/N. 30/2012-ST dated 20.06.2012 read with Section 68(2) of Finance Act 1994 and Rule 6 of Service tax Rules - Held that - In the said Notification w.e.f. 01.07.2012 in case of supply of manpower for any purpose or service in exemption of work contract by an individual HUF or partnership firm whether registered or not including association of persons are required to pay 25% of service tax and the service receiver is required to pay 75% of the said tax. Having regard to the fact that such payment of service tax in the proportion of 75 25 is applicable in respect of specified service providers and there is nothing available on record to justify that the taxability of the appellant has been created by availing services from those category of service providers there is no point in placing certain manpower service provided by the service provider whose firm names are referred in the audit report in those categories without any basis - raising of bills/ invoices and mentioning of percentage of tax payable by the service provider and service recipient by the service provider itself would form the basis of identification of service providers if they fall under those specified categories or under threshold limit in the organised sector and such a basis is found absent in the entire proceeding initiated against the appellant. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Non-payment of 75% service tax under partial reverse charge mechanism challenged.
Applicability of Notification no. 30/2012-ST dated 20.06.2012 and related provisions questioned.
Dispute over payment of service tax on invoice value for supply of manpower and agency service.
Interpretation of service tax rules and liability under Section 68(2) of Finance Act, 1994 analyzed.
Validity of order-in-original imposing tax liability, interest, and penalty on the appellant debated.

Issue 1: The challenge was against the non-payment of 75% service tax applicable on invoice value under the partial reverse charge mechanism. The appellant contested the order passed by the Commissioner (Appeals) which held the non-payment as a violation of the rule in Notification no. 30/2012-ST dated 20.06.2012, along with Section 68(2) of the Finance Act, 1994 and Rule 6 of Service Tax Rules.

Issue 2: The appellant's case revolved around receiving services from various providers and paying 100% service tax on the value of services. The appellant argued that the service providers had charged and paid the full service tax, and thus, no further tax liability was due. The Commissioner (Appeals) confirmed the order-in-original imposing tax liability, interest, and penalty, justifying the extended period.

Issue 3: During the appeal, the appellant urged to set aside the Order-in-Appeal and claimed a refund of service tax paid in compliance with audit directions. The appellant also argued that penalty under Section 78 is not mandatory, citing relevant case laws and CBEC circulars.

Issue 4: The appellant's counsel relied on various case laws to support their contentions during the appeal, emphasizing the interpretation of statutory provisions and the applicability of penalty provisions.

Issue 5: The respondent department defended the Commissioner (Appeals)'s order, stating that the statutory provisions required the appellant to pay 75% of the service tax, which was not done. The department relied on a Supreme Court decision to support the Commissioner's decision.

Issue 6: The Tribunal analyzed the Notification 30/12 dated 20.06.2012, which introduced the partial reverse charge mechanism for service tax payment. The Tribunal discussed the complexities and uncertainties arising from this mechanism and the challenges in identifying service providers falling under the specified categories.

Issue 7: The appellant argued that the service tax paid by the service recipient should be considered as payment by the appellant through its agent. However, the Commissioner (Appeals) differentiated between principal-agent relationships and highlighted the lack of evidence to substantiate such arrangements.

Issue 8: The Tribunal examined the contractual transfer of service tax liability to third parties and the necessity for the appellant to discharge the tax liability as per statutory provisions. The Tribunal noted discrepancies in the Commissioner's findings regarding the collection and deposition of the tax amount by the service providers.

Issue 9: The Tribunal deliberated on the benefits of discharging tax liabilities and the possibility of double taxation. The appellant's compliance with prevailing practices and the burden of proving malafide intentions on the revenue authority were discussed, along with the issue of double taxation.

Issue 10: The Tribunal considered the refund claim for subsequent tax payments made in compliance with audit reports. The appellant relied on a CBEC circular for refund procedures, emphasizing the need to follow prescribed refund procedures.

In conclusion, the Tribunal allowed the appeal, setting aside the Commissioner (Appeals)'s order-in-appeal dated 05.12.2017.