2018 (8) TMI 1021 - HC - Service Tax

Reimbursement of the service tax payable along with the interest - case of Revenue is that since the liability to deposit service tax is on the Petitioner under Section 68 of the Finance Act, 1994 and the price quoted by it was inclusive of all taxes, neither the service tax nor the interest component was liable to be reimbursed. Held that - It is clear that the intention of the parties, in the present case, was not to pass on the liability of the service tax to the Petitioner. The Petitioner was liable to the extent of the obligations which existed on the Bid date but not beyond that. As service tax was imposed subsequently, the same would be reimbursable. However, the matter does not end here. The fact that for more than 15 years, the Petitioner has not deposited the service tax, but is merely raising a claim for the entire service tax amount and the interest therein, shows that the Petitioner has not complied with the obligation under Section 68 of the Finance Act. Since the entire issue is in the realm of fiction at this point inasmuch as the Petitioner has not deposited the service tax and obviously cannot claim reimbursement of an amount which it has not deposited, no monetary claim is allowable in this matter - petition disposed off.

Summary

Issues Involved:
1. Liability to pay service tax.
2. Entitlement to reimbursement of service tax by the Railways.
3. Interpretation of contract clauses regarding taxes and duties.
4. Applicability of Supreme Court precedent on subsequent imposition of taxes.

Issue-wise Detailed Analysis:

1. Liability to Pay Service Tax:
The central issue in the case was the liability to pay service tax and whether the Petitioner was entitled to reimbursement of the same. The contract between the Petitioner and the Railways was executed on 15th July, 2003, with the bid submitted on 11th January, 2003. At the time of the bid submission, service tax was not applicable. The Finance Act was amended on 10th September, 2004, to include "Business Auxiliary Service" as a taxable service, thereby making service tax applicable to the Petitioner’s services.

2. Entitlement to Reimbursement of Service Tax by the Railways:
The Petitioner argued that since service tax was not applicable at the time of bid submission, any subsequent imposition should be reimbursed by the Railways, as per the "taxes and duties" clause in the bid document. The Railways, however, contended that the contract price was inclusive of all statutory levies, and thus, the Petitioner was responsible for any service tax imposed.

3. Interpretation of Contract Clauses Regarding Taxes and Duties:
The contract clauses were scrutinized to determine the parties' intentions regarding tax liabilities. The relevant clause stated that the bid price was inclusive of all taxes, but also mentioned that any excise duty levied would be reimbursed by the Railways. The Petitioner relied on this clause, arguing that it implied reimbursement for any new taxes imposed after the bid submission.

4. Applicability of Supreme Court Precedent on Subsequent Imposition of Taxes:
The Petitioner cited the Supreme Court judgment in Numaligarh Refinery Ltd. vs. Daelim Industrial Co. Ltd. (2007) 8 SCC 466, where it was held that if a tax was imposed after the execution of a contract, the liability for such tax would not fall on the bidder. The Court noted that the intention of the parties, as derived from the contract, was crucial in determining tax liabilities.

Court’s Observations and Judgment:
The Court observed that while the contract stated all taxes were to be paid by the Petitioner, it would be unreasonable to assume that taxes not in existence at the time of bid submission would also be the Petitioner’s liability. The Supreme Court precedent supported the view that new taxes imposed after contract execution should be reimbursed by the other party, in this case, the Railways.

However, the Court also noted that the Petitioner had not deposited the service tax for over 15 years and was merely raising a claim for reimbursement without fulfilling its tax obligations under Section 68 of the Finance Act. Therefore, the Court concluded that no monetary claim could be allowed at this stage.

Final Direction:
The Court directed that if a demand for service tax is raised in the future by the Service Tax Department, and the Petitioner deposits the said amount, they can approach the Railways for reimbursement at that stage. The petition was disposed of with these observations.