2024 (12) TMI 1559 - AT - Service Tax

Recovery of service tax on other charges collected by the appellant from vehicle buyers under the head business auxiliary services up to 30.6.2012 and thereafter for the service rendered with interest and penalty - ecovery of an amount under Rule 6(3)(1) of the CENVAT Credit Rules 2004 (CCR) on account of exempted services (trading activity) - extended period of limitation. Demand of an amount under Rule 6(3)(1) of CCR - HELD THAT - Rule 6 (3A) was introduced in the CCR specifically providing for such proportionate reversal. The mere fact that the appellant had not given an intimation to the Range Superintendent does not in any way negate the effect of the reversal. The reversal cannot be ignored to demand an amount of 5%/ 6% under Rule 6(3) of CCR - The obligations under Rule 6 of CCR can be fulfilled opting for any of the methods given in the Rule. It is not open to the department to choose an option and foist it upon the assessee. In no circumstances can the Department impose a particular choice upon the appellant and demand an amount under Rule 6 (3) of CCR as has been done in the impugned order. Rule 6 of CCR provides for recovery of an amount under Rule 6(3) under Rule 14. However this can only mean such cases where the assessee opted for reversal under Rule 6(3) of CCR but did not pay the whole or part of the amount. This provision for recovery cannot be read to imply that even if the assessee wants to opt for some other method under Rule 6 of CCR the provision of Rule 6(3) of CCR can be imposed upon the assessee by the department and the amount recovered - the demand of an amount under Rule 6(3) of CCR from the appellant cannot be sustained and it needs to be set aside. Demand of service tax under the head of Business Auxiliary Services - time limitation - HELD THAT - According to the appellant it had no such motives and it was and is still of the view that these charges were not exigible to service tax. Therefore it had not assessed service tax including these amounts in the taxable value of goods. It was registered with the Service Tax department and had been filing ST-3 Returns - The submissions of the appellant deserve to be accepted on this question. ST-3 returns only require aggregate value of the taxable services to be indicated and the service tax to be self-assessed. The assessee is under no obligation to indicate individual transactions. In the process the appellant may wrongly self-assess service tax. If the assessee either does not file the return at all or having filed it does not self-assess the service tax correctly Section 72 requires the Central Excise officer to do Best Judgment assessment and for this purpose he is empowered to call of any records or accounts from the assessee. The remedy against wrong self-assessment of service tax is best judgment assessment by the Central Excise officer and for this purpose he can call for any accounts. In this case the fact that the amounts were being collected as handling charges was not a secret and it was available in all the invoices. If the Central Excise officer had scrutinized the returns as he was bound to and called for records as he was empowered to he would have discovered what was discovered much later by the audit. Therefore if at all there was any service tax that escaped assessment but was discovered later by the audit the fault for that lies squarely at the doorstep of the officer and not at the door step of the appellant. Once the assessee self-assessed service tax as per his understanding he cannot be alleged to have suppressed any facts especially when all the facts were in its records and were discovered from them by the audit - Extended period of limitation was wrongly invoked in the case. Demand within the normal period of limitation i.e. from 01.01.2013 to 31.03.2015 - post-negative list regime - HELD THAT - The invoices are issued by the appellant as authorised dealer of Maruti Suzuki. The invoices indicate that the sale was on ex-showroom basis and the price is indicated on this basis. In addition that the appellant collected other charges from the customers. The ex-show room price included the price of the vehicle and the applicable VAT. In addition the appellant collected an amount towards extended warranty and towards other charges - Evidently to the extent these recoveries are towards the cost of some goods supplied such as accessories decoratives and body cover or cost of petrol filled in the car they cannot be called as payments for rendering any service. Other recoveries such as handling charges are clearly charges for rendering a service in the form of handling. All services other than those in negative list are exigible to service tax in the post negative list regime and therefore service tax has to be paid on such amounts. If no service tax was collected by the appellant from its customers on such amounts the amounts so collected need to be treated as cum-tax values and the amount of service tax needs to be calculated backwards. Conclusion - i) The order to recover an amount of Rs. 3, 25, 80, 796/- calculated @5%/ 6% of the value of the exempted service viz. trading activity under rule 6(3)(1) of CCR is set aside. ii) The demand of service tax on the other income of the appellant is set aside for the extended period of limitation i.e. up to 30.9.2013. iii) The demand of service tax on the other income of the appellant for the period 01.10.2013 to 31.03.2015 is set aside to the extent this income represents the value of the goods or petrol sold. It is upheld to the extent it is on account of the handling charges or any other amounts collected for rendering any other service. Since the appellant had not collected service tax on these amounts from its buyers the amounts collected by the appellant should be taken as cum-tax values. iv) All penalties are set aside. The matter is remanded to the Commissioner for the limited purpose of calculation of service tax as above after giving the appellant an opportunity to present its figures.

Summary

The core legal questions considered by the Tribunal are:

1. Whether the demand for recovery of an amount under Rule 6(3)(1) of the CENVAT Credit Rules, 2004 (CCR) on account of exempted services (trading activity) is sustainable, given that the appellant had reversed proportionate CENVAT credit attributable to exempted services but did not comply with the intimation procedure under Rule 6(3A) of CCR.

2. Whether the demand of service tax on "other charges" collected by the appellant from vehicle buyers, both for the pre-negative list period (as "business auxiliary services") and post-negative list period (as taxable services), is justified.

3. Whether the extended period of limitation under the proviso to section 73(1) of the Finance Act, 1994 could be invoked for recovery of service tax and imposition of penalties.

4. Whether penalties under sections 77 and 78 of the Finance Act, 1994 and Rule 15 of CCR can be sustained.

Issue-wise Detailed Analysis:

1. Demand under Rule 6(3)(1) of CENVAT Credit Rules, 2004:

The relevant legal framework includes Rule 6 of CCR, which governs the obligations of manufacturers/providers of output services who provide both taxable and exempted goods/services. Rule 6(1) disallows credit on inputs/input services used exclusively for exempted goods/services. Rule 6(2) requires maintenance of separate accounts for inputs/input services used in taxable and exempted activities. Rule 6(3) offers options for those opting not to maintain separate accounts, including payment of a specified percentage of the value of exempted goods/services or reversal of credit attributable to exempted services under Rule 6(3A).

The appellant had availed CENVAT credit on common input services used for both taxable and exempted services and had reversed the proportionate credit attributable to exempted services. However, the Commissioner rejected this reversal on the ground that the appellant failed to intimate the Superintendent as required under Rule 6(3A)(a). Consequently, the Commissioner demanded payment of 5%/6% of the value of exempted services under Rule 6(3)(1)(b).

The Tribunal referred to the authoritative Supreme Court decision in Chandrapur Magnet Wires (P) Ltd. v. Collector of Central Excise, which held that reversal of credit is equivalent to not having taken credit at all. Thus, the appellant's reversal should be treated as compliance with Rule 6(2) requirements.

The Tribunal further noted that Rule 6(2) does not prescribe a specific manner of maintaining separate accounts, and reversal of credit is a practical method of compliance. The failure to intimate the Superintendent under Rule 6(3A) does not negate the effect of the reversal.

Importantly, the Tribunal emphasized that Rule 6(3) offers options to the assessee, and the department cannot impose an option on the assessee. The appellant's choice of reversal should be respected, and the department cannot force payment under Rule 6(3)(1)(b) without the appellant's consent.

The Tribunal relied on the High Court of Telangana's decision in M/s Tiara Advertising v. Union of India, which held that the revenue cannot choose an option on behalf of the assessee under Rule 6(3) and that the department's arbitrary imposition of such choice is impermissible.

The Tribunal concluded that the demand under Rule 6(3)(1) of CCR is unsustainable and set aside this portion of the demand.

2. Demand of Service Tax on "Other Charges":

The demand relates to "other charges" collected by the appellant from vehicle buyers, including recovery for fuel supplied with the vehicle, car decoratives and chocolates, sale of optional accessories, and vehicle handling charges. The demand covers two periods: pre-negative list period (up to 30.06.2012) under "business auxiliary services" and post-negative list period (after 01.07.2012) where all services except those in the negative list are taxable.

The appellant contended that these amounts were in the nature of sales and hence liable to VAT, not service tax, relying on CBEC Circular No. 699/15/2003-CX and relevant case law. It argued that the handling charges formed part of the sale price and should not be subjected to service tax.

The Revenue argued that these amounts were collected over and above the sale price and VAT, representing charges for services rendered (e.g., handling), and thus liable to service tax as they were not in the negative list.

The Tribunal examined invoices and debit notes, noting that the ex-showroom price included the vehicle price and VAT, while "other charges" and extended warranty were separately stated. The amounts recovered under "other charges" were not part of the VAT assessable value, indicating they were distinct from sale of goods.

The Tribunal distinguished between recoveries for goods supplied (fuel, accessories, decoratives) and charges for services rendered (handling charges). It held that amounts recovered for goods supplied are sales and not liable to service tax, while handling charges are for services and liable to service tax in the post-negative list regime.

Since the appellant had not collected service tax on handling charges from customers, the Tribunal directed that these amounts be treated as cum-tax values for backward calculation of service tax.

The Tribunal modified the impugned order by setting aside service tax demand on amounts representing sale of goods and upheld demand on handling charges and other service-related amounts for the period 01.10.2013 to 31.03.2015.

3. Invocation of Extended Period of Limitation:

The extended period of limitation under proviso to section 73(1) of the Finance Act, 1994 can be invoked only in cases involving fraud, collusion, willful misstatement, suppression of facts, or violation of the Act or Rules with intent to evade tax.

The Commissioner invoked extended limitation on the ground that the appellant had not disclosed the collection of "handling charges" and had suppressed material facts with intent to evade tax.

The appellant argued that it had no intention to evade tax and had been registered and filing ST-3 returns based on its understanding that these charges were not taxable. It contended that the extended period was wrongly invoked.

The Tribunal noted that ST-3 returns require aggregate taxable service value but do not mandate disclosure of individual transactions. The appellant's self-assessment, even if incorrect, does not amount to suppression if facts are in records and discoverable by the department through audit or best judgment assessment under section 72.

The Tribunal held that the failure to disclose "handling charges" was not willful suppression since the facts were available in records and could have been discovered by the department through due diligence. The fault, if any, lay with the department for not scrutinizing returns or calling for records earlier.

Accordingly, the Tribunal held that the extended period of limitation was wrongly invoked and limited the demand to the normal period of limitation.

4. Penalties under Sections 77, 78 and Rule 15 of CCR:

The penalties were imposed on the basis of extended limitation and alleged suppression or contravention of statutory provisions.

Since the Tribunal found the extended period wrongly invoked and no willful suppression or intent to evade tax, it set aside all penalties.

Significant Holdings:

"If credit is taken and thereafter reversed, to the extent it is reversed, it is good as not having taken the credit at all."

"Rule 6(2) of CCR only requires the appellant to maintain separate accounts... Reversal of credit is a practical method of maintaining separate accounts."

"The mere fact that the appellant had not given an intimation to the Range Superintendent does not, in any way, negate the effect of the reversal."

"The obligations under Rule 6 of CCR can be fulfilled by opting for any of the methods given in the Rule. It is not open to the department to choose an option and foist it upon the assessee."

"The appellant's failure to disclose 'handling charges' was not willful suppression since the facts were available and discoverable by the department."

"The extended period of limitation was wrongly invoked."

"Amounts recovered towards goods supplied (fuel, accessories, decoratives) are sales and not liable to service tax; amounts recovered as handling charges are for services and liable to service tax."

"Since service tax was not collected on handling charges, these amounts should be treated as cum-tax values for backward calculation of service tax."

The Tribunal set aside the demand under Rule 6(3)(1) of CCR, limited the service tax demand to the normal period of limitation, upheld service tax on handling charges but not on goods supplied, and set aside all penalties. The matter was remanded for recalculation of service tax on handling charges after giving the appellant an opportunity to present its figures.