2022 (10) TMI 142 - AT - Service Tax

Levy of Service Tax - liquidated damages - Section 66E(e) of the Finance Act, 1994 - HELD THAT - This Bench of the Tribunal in the case of M/S NEYVELI LIGNITE CORPORATION LIMITED VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE AND SERVICE TAX, CHENNAI WITH M/S NLC INDIA LIMITED VERSUS COMMISSIONER OF GST AND CENTRAL EXCISE, TRICHY 2021 (7) TMI 1090 - CESTAT CHENNAI has held that it is not possible to sustain the view taken by the Commissioner that since BHEL did not complete the task within the time schedule, the appellant agreed to tolerate the same for a consideration in the form of liquidated damages, which would be subjected to service tax under Section 66E(e) of the Finance Act. There are no reasons to sustain the order of demand and consequently, the impugned order is set aside - appeal allowed - decided in favor of appellant.

Summary

Issues:
Whether the Revenue was justified in demanding Service Tax on the liquidated damages under Section 66E(e) of the Finance Act, 1994?

Analysis:
The appeal was filed against the Order-in-Appeal passed by the Commissioner of G.S.T. and Central Excise (Appeals-II), Chennai. The main issue was whether the Revenue was correct in demanding Service Tax on liquidated damages under Section 66E(e) of the Finance Act, 1994. The appellant argued that the issue had already been decided by the CESTAT in previous cases. The appellant relied on the decisions of the CESTAT in the cases of M/s. Neyveli Lignite Corporation Ltd. and M/s. South Eastern Coalfields Ltd. The Revenue, on the other hand, mentioned that the Hon'ble Apex Court had admitted an appeal against the decision in the case of M/s. South Eastern Coalfields Ltd. but no stay was granted.

The Tribunal considered the arguments presented by both sides and referred to the decisions in the cases of M/s. Neyveli Lignite Corporation Ltd. and M/s. South Eastern Coalfields Ltd. In the case of M/s. South Eastern Coalfields Ltd., it was observed that the recovery of liquidated damages/penalty cannot be considered as a service under the definition provided by the relevant sections of the Finance Act. The Tribunal concluded that the imposition of liquidated damages was not towards toleration of the defaulting party but rather to ensure compliance with the contract terms. The Tribunal held that the demand for Service Tax on liquidated damages was not justified under Section 66E(e) of the Finance Act.

Ultimately, based on the precedents and the analysis of the relevant legal provisions, the Tribunal set aside the order of demand by the Revenue. The appeal was allowed with consequential benefits, if any, as per the law. The order was pronounced in open court on the specified date.