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2025 (3) TMI 680 - AT - Service TaxLevy of service tax - amounts collected as notice pay from employees for non-observance of the agreed notice period - retention of advance amounts by the appellant due to cancellation of bookings or no-show by customers declared service or not. HELD THAT - Reliance placed in the case of M/S BALAJI MEDICAL DIAGNOSTIC RESEARCH CENTRE VERSUS PRINCIPAL COMMISSIONER CENTRAL GOODS SERVICE TAX (EAST DELHI) NEW DELHI 2023 (12) TMI 748 - CESTAT NEW DELHI where it was held that Such amounts paid by the employer to the employee for premature termination of a contract of employment are treatable as amounts paid in relation to services provided by the employee to the employer in the course of employment. Hence amounts so paid would not be chargeable to service tax. However any amount paid for not joining a competing business would be liable to be taxed being paid for providing the service of forbearance to act. Tribunal in Shiv Vilas Resort 2023 (12) TMI 1006 - CESTAT NEW DELHI it was held that the adjudicating authority below has wrongly held the no show charges as a consideration for providing declared service. There are no reason to differ from these findings. Since the issue stands already decided in favour of assessee and has attained finality it is no more res-integra. The adjudicating authorities are held to have failed to follow the judicial protocol while going against the said decisions. Conclusion - i) The notice pay collected from employees for not serving the agreed notice period is not a consideration for any service and therefore not subject to service tax. ii) The amounts retained by the appellant due to cancellation of bookings do not constitute a declared service under Section 66E(e) of the Finance Act 1994 and are not taxable. Appeal allowed.
ISSUES PRESENTED and CONSIDERED
The core legal issues considered in this judgment are: 1. Whether the amounts collected as "notice pay" from employees for non-observance of the agreed notice period are subject to service tax under the Finance Act, 1994. 2. Whether the retention of advance amounts by the appellant, due to cancellation of bookings or no-show by customers, constitutes a declared service under Section 66E(e) of the Finance Act, 1994, thus attracting service tax. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxability of "Notice Pay" - Relevant Legal Framework and Precedents: The issue revolves around the interpretation of Section 66B and Section 65B(44) of the Finance Act, 1994, which define service tax applicability. The appellant argued that the amounts collected as "notice pay" do not constitute a service and cited several precedents, including GE T & D India Ltd. and Manappuram Finance Ltd., where courts held that such amounts are not subject to service tax. - Court's Interpretation and Reasoning: The Tribunal acknowledged that the issue of "notice pay" has been consistently decided in favor of the appellant in previous judgments. The Tribunal referred to the decision in Balaji Medical & Diagnostic Research Centre, which clarified that compensation paid by an employee for premature termination of employment is not a consideration for any service. - Key Evidence and Findings: The Tribunal noted that the employment contracts included notice periods to allow both parties to make necessary arrangements in case of termination. The compensation paid for not serving the notice period is a contractual obligation and not a service rendered. - Application of Law to Facts: The Tribunal applied the legal principles established in previous cases, concluding that "notice pay" is not a service and therefore not taxable. - Treatment of Competing Arguments: The Department acknowledged that the issue is covered in favor of the appellant by previous Tribunal decisions. - Conclusions: The Tribunal concluded that "notice pay" does not attract service tax as it is not a consideration for any service. Issue 2: Taxability of Retained Advance Amounts - Relevant Legal Framework and Precedents: The issue pertains to Section 66E(e) of the Finance Act, 1994, which defines declared services. The appellant argued that retained amounts due to cancellations are not for any service rendered, citing cases like Shiv Vilas Resorts and Lemon Tree Hotel. - Court's Interpretation and Reasoning: The Tribunal referred to the decision in Shiv Vilas Resort, which held that retention or cancellation charges do not constitute a declared service as they are not for tolerating an act or a situation. - Key Evidence and Findings: The Tribunal found that the agreements between the appellant and its customers were for providing accommodation services, and the retention of advances was a penalty for non-compliance with the terms, not a service. - Application of Law to Facts: The Tribunal applied the legal reasoning from previous cases, determining that the retention of advance payments does not constitute a taxable service. - Treatment of Competing Arguments: The Department acknowledged that the issue is covered in favor of the appellant by previous Tribunal decisions. - Conclusions: The Tribunal concluded that retained advance amounts due to cancellations are not subject to service tax as they do not represent a consideration for any service. SIGNIFICANT HOLDINGS - The Tribunal reiterated the principle that "notice pay" collected from employees for not serving the agreed notice period is not a consideration for any service and therefore not subject to service tax. - The Tribunal held that amounts retained by the appellant due to cancellation of bookings do not constitute a declared service under Section 66E(e) of the Finance Act, 1994, and are not taxable. - The Tribunal emphasized the importance of adhering to judicial precedents and criticized the adjudicating authorities for not following established judicial protocol. - The Tribunal set aside the impugned orders and allowed the appeals, concluding that the issues are no longer res integra and have been settled in favor of the appellant.
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