2021 (6) TMI 25 - AT - Service Tax

Reverse charge mechanism - Levy of service tax - Banking and Financial Services - service provider located outside India - time limitation - penalty - revenue neutrality - various service provider viz. Merchant Bankers, Lead Managers, Advisors, Financial Advisors, Principal Agents, Legal Advisors, Management Consultants, Under writers, etc. who are based outside India and have charged fees for their services in Foreign Currency for raising funds through ECB FCCB. - HELD THAT - The appellant has neither raised the issue of taxability seriously before the adjudicating authority nor even in the appeal memo filed before us. It is also observed that the appellant have vehemently argued that their case is covered under Section 73(3) Finance Act, 1994. Section 73(3) applies only in such case where the assessee undisputedly accepting the liability discharged the service tax and interest before issuance of Show Cause Notice subject to some other conditions as laid down in Section 73(3) therefore, since the appellant having not contested the issue of taxability of service at any point of time before the adjudicating authority as well as in this appeal, we hold that that the service received by the appellant is liable to service tax. Time Limitation - Penalty - HELD THAT - The adjudicating authority has not verified any fact related to revenue neutrality - the appellant have submitted certain documents before us showing that they were eligible for Cenvat Credit which they have already availed in respect of Service tax paid by them and during the relevant period they have discharged the excise duty of a substantial amount from their PLA account - the limitation as well as imposition of penalty needs to be reconsidered on the point of the revenue neutrality particularly on the document submitted by the appellant. Appeal allowed by way of remand.

Issues Involved:
1. Taxability of services received by the appellant.
2. Invocation of the extended period for demand.
3. Imposition of penalties under various sections of the Finance Act, 1994.
4. Applicability of revenue neutrality.

Detailed Analysis:

1. Taxability of Services:
The appellant received services from various foreign service providers for raising finance through External Commercial Borrowings (ECB) and Foreign Currency Convertible Bonds (FCCB). The services were provided by entities outside India, and as per Rule 2(1)(d)(iv) of the Service Tax Rules, 1994, the appellant, being the recipient, was liable to pay service tax under the category of Banking and Financial Services. The appellant did not contest the taxability of the services before the adjudicating authority or in the appeal memo. Consequently, the tribunal held that the services received by the appellant were liable to service tax.

2. Invocation of Extended Period for Demand:
The appellant argued that the extended period of demand could not be invoked as there was no mala fide intention or suppression of facts. They contended that the delay in payment was due to a misunderstanding regarding the liability, which was later rectified by paying the service tax along with interest. The tribunal found that the appellant had raised a significant point regarding revenue neutrality, which was not adequately addressed by the adjudicating authority. The tribunal noted that the adjudicating authority failed to verify facts related to revenue neutrality and relied on outdated judgments.

3. Imposition of Penalties:
The adjudicating authority imposed various penalties under Sections 76, 77, and 78 of the Finance Act, 1994. The appellant contended that since they had discharged the service tax along with interest before the issuance of the Show Cause Notice, their case was covered under Section 73(3) of the Finance Act, 1994, which precludes the issuance of a show cause notice in such circumstances. The tribunal found that the adjudicating authority did not consider the appellant's eligibility for Cenvat Credit and the substantial amount of excise duty discharged from their PLA account. The tribunal noted that the issue of revenue neutrality and the imposition of penalties needed reconsideration, particularly in light of the documents and judgments presented by the appellant.

4. Applicability of Revenue Neutrality:
The appellant argued that the entire exercise was revenue neutral as they were eligible for Cenvat Credit, which would offset the service tax liability. The adjudicating authority dismissed this argument, stating that the liability to pay interest negated the revenue neutrality claim. However, the tribunal observed that the adjudicating authority did not verify the facts related to revenue neutrality and relied on outdated judgments. The tribunal acknowledged the appellant's submission of documents showing eligibility for Cenvat Credit and substantial excise duty payments from their PLA account. The tribunal concluded that the limitation and imposition of penalties needed reconsideration on the point of revenue neutrality.

Conclusion:
The tribunal allowed the appeal by remanding the case to the adjudicating authority for reconsideration of the issues related to the limitation and imposition of penalties, particularly in light of the revenue neutrality argument and the documents and judgments submitted by the appellant. The tribunal emphasized the need for a thorough verification of facts and a reconsideration of the appellant's eligibility for Cenvat Credit.

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