2021 (10) TMI 229 - AT - Service Tax

Demand of service tax on ross-border transactions - place of provision of services - remittances made to their branches and offices abroad - consideration for taxable service procured from outside the taxable territory - HELD THAT - The controversy in taxing of intangibles, fraught with obvious handicap of lack of visibility, is compounded when it comes to the imperative of bestowing national treatment to services sourced from abroad owing to impossibility of ascertaining arrival at the territorial boundary. The saddling of demand on the one manifest aspect of service transactions, viz., consideration , without contextual reference to the taxable event, though irresistibly attractive to tax authorities, may not always be consistent with legislative intent. That has been the thrust of decisions of the Tribunal in several disputes arising from the fastening of tax liability in cross-border transactions. With the transition to the negative list regime, the substance of the transformation is reflected in the combination of section 65B, section 66B, section 66C, section 66D and section 66E of Finance Act, 1994 with the insertions having been crafted to accommodate the broadened and general description of taxable services , as defined in 65B(51) of Finance Act, 1944. Documentation of the circumstances surrounding this paradigm shift does not offer any scope to infer that the concept which birthed the levy of services provided within the country, as well as those brought into the country, was intended to be re-shaped beyond the significant departure from the delineated description of each of the enumerated services hitherto existing. Rule 2 of Place of Provision of Service Rules, 2012 may well bring the locus back to demutualised relationship between the establishment in India and its branches abroad in much the same as Explanation 1 in section 66A did. And just as the determination of rendering of taxable service in accordance with Taxation of Services (Provided from Outside India and Received in India) Rules, 2006 was essential for validation of any levy on consideration remitted by principal office before July 2012, the Rules, along with the parent provision in Finance Act, 1994 and the charging provision are applicable only to services , conforming to the description elaborated in section 65B(44) of Finance Act, 1994 therein, without exception after June 2012. There is no such ascertainment or finding in the impugned order. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Taxability of remittances made to overseas branches as 'consideration' for 'taxable service'.
2. Applicability of interest liability under Section 75 of Finance Act, 1994.
3. Imposition of penalty under Sections 76 and 77 of Finance Act, 1994.
4. Consideration of remittances as payments for supplies procured by overseas branches.
5. Validity of statutory provisions and Rules applied in the impugned order.

Issue-Wise Detailed Analysis:

1. Taxability of Remittances as 'Consideration' for 'Taxable Service':
The appellant, M/s Kusum Healthcare Ltd, challenged the demand for service tax on remittances made to their overseas branches, which the Commissioner of Central Excise, Alwar, considered as 'consideration' for 'taxable service' procured from outside the 'taxable territory'. The appellant relied on precedents where similar demands were set aside, arguing that the nature of the relationship between the principal office and overseas branches does not render internal transactions as 'consideration' for 'taxable service'. The Tribunal had previously ruled that such internal financial flows do not constitute 'taxable service' without positive evidence of services rendered within the meaning of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006.

2. Applicability of Interest Liability under Section 75 of Finance Act, 1994:
The appellant sought to quash the interest liability imposed under Section 75 of the Finance Act, 1994. The Tribunal’s analysis indicated that the remittances were for the maintenance and upkeep of the branches, not for any taxable service. The Tribunal’s previous rulings, including in Milind Kulkarni’s case, emphasized that taxing such remittances would amount to taxing an activity provided to oneself, which is not the legislative intent.

3. Imposition of Penalty under Sections 76 and 77 of Finance Act, 1994:
The appellant also contested the penalties imposed under Sections 76 and 77 of the Finance Act, 1994. The Tribunal’s findings suggested that the remittances were reimbursements for establishment costs, not payments for services rendered. Therefore, the penalties were deemed inappropriate as there was no taxable service involved.

4. Consideration of Remittances as Payments for Supplies Procured by Overseas Branches:
The appellant argued that the remittances were payments for supplies procured by overseas branches, which should not be deemed as received in the 'taxable territory'. The Tribunal noted that the explanation provided by the appellant was not adequately considered in the impugned order. The Tribunal’s earlier decisions clarified that the legal fiction of treating branches as separate establishments is not to tax services rendered to the head office.

5. Validity of Statutory Provisions and Rules Applied in the Impugned Order:
The appellant contended that the impugned order was based on statutory provisions and Rules that had ceased to be in vogue. The Tribunal’s analysis confirmed that the deeming provisions in Section 66A and subsequent Rules were intended to prevent tax avoidance but not to tax transactions normal to the dependent existence of branches. The Tribunal concluded that the legislative intent did not support the tax demand on remittances for branch maintenance.

Conclusion:
The Tribunal set aside the impugned order, allowing the appeal. It was determined that the remittances were for the upkeep of the branches and not for any taxable service. The penalties and interest liabilities were also quashed as the remittances did not constitute 'consideration' for 'taxable service'. The Tribunal emphasized that the legislative intent was not to tax internal financial flows between a principal office and its branches. The order was pronounced in the open court on 01/10/2021.

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