2023 (5) TMI 863 - AT - Service Tax

Valuation - receiving damages/compensation from the service provider - declared service as per the provisions contained in Section 66E(e) of Finance Act 1994 - HELD THAT - The Tribunal in the case of M/S MADHYA PRADESH POORVA KSHETRA VIDYUT VITARAN COMPANY LIMITED VERSUS COMMISSIONER OF CGST CENTRAL EXCISE MADHYA PRADESH 2022 (4) TMI 773 - CESTAT NEW DELHI has dealt an identical issue and has held against the Revenue holding that the amount received as compensation for breach of contract should not be considered as taxable service within the purview of declared service as per Section 66E ibid. It is also found that the Tax Research Unit of the Department of Revenue in the Ministry of Finance vide Circular dated 3rd August 2022 has specifically clarified that the compensation received on account of breach of contract should not form part of declare service for the purpose of payment of service tax by the assessee. There are no merits in the impugned order passed by the Learned adjudicating authority - appeal allowed.

Summary

Issues:
1. Confirmation of service tax demand on appellant for receiving damages/compensation from service providers.
2. Interpretation of whether damages/compensation received should be considered as taxable service under Section 66E of Finance Act, 1994.
3. Applicability of Circular No. 178/10/2022-GST on the taxability of liquidated damages.

Issue 1: Confirmation of service tax demand on appellant for receiving damages/compensation from service providers
The appeal was directed against an order confirming a service tax demand of Rs. 83,35,72,810 along with penalties imposed on the appellant for showing income under 'Liquidated Damages Deduction' and 'Penalty/Compensation recovered from the Contractors'. The department considered these entries as taxable under Section 66E(e) of the Finance Act, 1994. The appellant argued that these amounts should not be considered as 'consideration' for levy of service tax, citing precedents and Circular No. 178/10/2022-GST. The Revenue supported the findings in the impugned order.

Issue 2: Interpretation of whether damages/compensation received should be considered as taxable service under Section 66E of Finance Act, 1994
The Tribunal referred to a similar case where it was held that compensation received for breach of contract should not be considered as taxable service under Section 66E. The Circular dated 3rd August, 2022, clarified that compensation for breach of contract should not be part of declared service for service tax payment. The Circular explained that liquidated damages are not consideration for a supply and are not taxable unless they are for tolerating an act or refraining from doing something. The Tribunal found no merit in the impugned order based on the CBIC clarification and Tribunal decisions, ultimately allowing the appeal in favor of the appellant.

Issue 3: Applicability of Circular No. 178/10/2022-GST on the taxability of liquidated damages
The Circular provided detailed explanations on liquidated damages, emphasizing that such payments are not taxable if they are merely compensatory for loss or damage suffered due to breach of contract. It differentiated between payments that constitute consideration for a supply and those that do not. The Circular highlighted examples where payments like liquidated damages, penalties, or forfeitures are not taxable as they do not represent consideration for a supply. The Tribunal, considering the Circular and previous decisions, concluded that the impugned order lacked merit and allowed the appeal in favor of the appellant.

In conclusion, the Tribunal, based on the CBIC Circular and precedent cases, set aside the impugned order confirming the service tax demand on the appellant for receiving damages/compensation from service providers. The judgment clarified the non-taxable nature of compensatory payments like liquidated damages when they do not represent consideration for a supply, ultimately ruling in favor of the appellant.