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2023 (8) TMI 900 - AT - Service TaxDeclared Service or not - amount deducted by the appellant towards the compensation for not supplying the WHR boiler in time - section 66E(e) of Finance Act 1994 - HELD THAT - In the present case, it is not the case of the department that the agreement provides for a consideration for an obligation to refrain from an act or for agreeing to tolerate an act or a situation. The demand, therefore, could not have been confirmed in view of decision of the Tribunal in M/S SOUTH EASTERN COALFIELDS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, RAIPUR 2020 (12) TMI 912 - CESTAT NEW DELHI and the Circular dated 28.02.2023 - In the said case it was held that The activities, therefore, that are contemplated under Section 66E(e), when one party agrees to refrain from an act, or to tolerate an act or a situation, or to do an act, are activities where the agreement specifically refers to such an activity and there is a flow of consideration for this activity. The order dated 04.10.17 passed by the Commissioner (Appeals) cannot, therefore, be sustained and is set aside - The appeal is, accordingly, allowed.
Issues:
The issue involves consideration of whether the amount deducted by the appellant towards compensation for delayed supply of WHR boiler can be categorized as a declared service under section 66E(e) of the Finance Act 1994. Detailed Judgment: Issue 1: The primary issue in this case pertains to the categorization of the amount deducted by the appellant for delayed supply of WHR boiler as a declared service under section 66E(e) of the Finance Act 1994. The Commissioner (Appeals) upheld the demand raised by the department, deeming the deduction as an obligation to tolerate the delay in supplying the boiler, falling within the ambit of declared service. Issue 2: The appellant argued that the issue at hand aligns with the Tribunal's decision in a previous case and Circular No. 214/2023 Service Tax, indicating that the order should be overturned. The Authorized Representative for the department supported the impugned order. Issue 3: The Division Bench of the Tribunal, in a similar case, emphasized the necessity of a flow of consideration in agreements where one party agrees to an obligation to refrain from an act, tolerate a situation, or perform an act. The intention of the parties was crucial, and the recovery of liquidated damages or penalties was not considered a service under the defined parameters. Issue 4: The Circular issued by the Board clarified the levy of service tax on activities falling under section 66E(e) of the Finance Act, emphasizing the need for a flow of consideration for such activities. The Circular referenced previous Tribunal decisions and highlighted the importance of contractual arrangements with a nexus between the supply and consideration. Issue 5: Considering the lack of a provision for consideration in the agreement for tolerating an act or refraining from an act, the department's demand was deemed unsustainable. Relying on the Tribunal's precedent and the Circular, the order passed by the Commissioner (Appeals) was set aside, and the appeal was allowed. In conclusion, the judgment centered on interpreting the applicability of declared services under section 66E(e) of the Finance Act 1994, emphasizing the necessity of a flow of consideration in agreements involving refraining from an act, tolerating a situation, or performing an act. The decision underscored the importance of aligning contractual arrangements with the specified criteria to determine the levy of service tax on such activities.
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