2012 (4) TMI 457 - SC - Service Tax

Liability of service recipient to pay (reimburse) service tax to the server provider - the appellant deducted the service tax from the bills of the respondent - the appellant deducted 5% tax on the bills of the respondent for the period 30.11.1997 to 6.8.1999 respondent refused to accept the deductions as they are not Assessee under the Service Tax Act- the Appellants are being recipients resisted and have filed the return, thus the appellant s obligation to pay the Service Tax and not that of the Respondents Held that - Since clause 9.3 of the contract refers to the liabilities of the contractor in connection with discharge of his obligations, one will have to refer to clause 6 of the Terms and Conditions for Handling of Iron and Steel Materials of RINL, VSP which was an integral part of the contract between the petitioner and the respondent, and which was titled Obligations of the Contractor - the said paragraph 6 deals in great details with the work which was required to be done by the respondent as clearing and forwarding agent. It is therefore absolutely clear that the term his obligations under this order in clause 9.3 of the contract denoted the contractor s responsibilities under clause 6 in relation to the work which he was required to carry out as handling contractor - the respondent as the contractor had to bear the service tax under clause 9.3 as the liability in connection with the discharge of his obligations under the contract and there was no reason for the High Court to interfere in the view taken by the arbitrator.

Issues Involved:
1. Whether the appellant was right in deducting the service tax from the bills of the respondent under clause 9.3 of the contract.
2. Whether the interpretation of clause 9.3 by the arbitrator was against the terms of the contract and therefore illegal, or whether it was a possible view.

Issue-wise Detailed Analysis:

1. Deduction of Service Tax by the Appellant:

The core issue revolves around clause 9.3 of the contract, which states: "The Contractor shall bear and pay all taxes, duties and other liabilities in connection with discharge of his obligations under this order." The appellant, a government undertaking, deducted 5% service tax from the respondent's bills for the period 30.11.1997 to 6.8.1999. The respondent, a transportation firm, disputed these deductions, leading to arbitration.

The arbitrator held that the respondent was liable for the service tax as per clause 9.3, noting that the contract referred to the respondent as the 'handling contractor' responsible for handling iron and steel materials. The arbitrator concluded that the service tax was directly connected to the discharge of the respondent's obligations under the contract.

The High Court, however, set aside the arbitrator's award, stating that the appellant, as the assessee under the service tax law, was liable to pay the tax. The Division Bench upheld this view, emphasizing that there was no specific clause allowing the appellant to deduct service tax from the respondent's payments.

2. Interpretation of Clause 9.3 by the Arbitrator:

The appellant argued that clause 9.3 clearly stipulated that the contractor would bear all taxes arising from the discharge of his obligations, including service tax. The appellant contended that the arbitrator's interpretation was correct or at least a possible view. They cited precedents where courts refrained from interfering with arbitrators' interpretations of contract terms unless they were patently illegal or beyond jurisdiction.

The respondent countered that the appellant, as the assessee, was liable for service tax and that clause 9.3 did not imply a right to shift this tax liability. They argued that the arbitrator should have applied the principle of contra proferentem, interpreting any ambiguity against the drafter (the appellant).

The Supreme Court noted the evolution of service tax law, initially placing the liability on the service provider and later, through amendments, on the service recipient. The contract was signed before these amendments, and the parties' intention at the time was crucial. The Court found that clause 9.3 was meant to ensure the contractor bore all tax liabilities arising from their obligations, aligning with commercial practices where tax burdens are often shifted contractually.

The Court emphasized that the arbitrator's interpretation was a possible view, and courts should not substitute their evaluation for that of the arbitrator. They referenced multiple cases underscoring the limited scope of judicial intervention in arbitral awards, particularly regarding contract interpretation.

Conclusion:

The Supreme Court concluded that the appellant was justified in deducting the service tax under clause 9.3, as it was a liability arising from the respondent's contractual obligations. The arbitrator's interpretation was deemed a possible view, and the High Court erred in interfering with the award. The appeal was allowed, setting aside the High Court's judgments and upholding the arbitrator's award.

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