2014 (11) TMI 503 - AT - Service Tax

Tribunal rules in favor of appellant, absolving liability for service tax under Banking and Finance Institution category.

KINGFISHER AIRLINES PVT LTD. Versus COMMISSIONER OF SERVICE TAX, MUMBAI

The Tribunal ruled in favor of the appellant, absolving them of the liability for service tax under the Banking and Finance Institution service category. ... Banking and Finance Institution service - Reverse charge mechanism - Invocation of extended period of limitation - Held that:- money lender BNP Paribas has secured the loan amount lended (sic) to appellant from COFACE France and have secured their money they have paid insurance guarantee to COFACE France. When these facts are clear in this case, therefore, the service receiver is BNP Paribas and the service provider is COFACE, France. The appellant is only the beneficiary of the transaction held between BNP Paribas and COFACE, France. As the appellant is neither service provider nor service recipient, the appellant is not liable to pay service tax at all under Reverse charge mechanism - Decided in favour of assessee. Issues:1. Liability of service tax under the category of Banking and Finance Institution service under Reverse charge mechanism.2. Invocation of the extended period of limitation for confirming the demand.3. Determination of the service provider and service receiver in the transaction.Analysis:1. The appellant appealed against the order demanding service tax with interest under the Banking and Finance Institution service category by invoking the extended period of limitation. The appellant argued that as a beneficiary of the transaction between BNP Paribas and COFACE, France, they are not directly receiving any service and therefore should not be liable to pay service tax under the Reverse charge mechanism. The appellant contended that the insurance guarantee amount paid by BNP Paribas to COFACE was for securing the loan provided to the appellant, and hence, the appellant is not the service recipient. The Tribunal agreed with the appellant's argument, ruling that the appellant is neither the service provider nor the service recipient in the transaction, thereby absolving them of the service tax liability.2. The Commissioner had dropped the penalty on the appellant by invoking Section 80 of the Finance Act, 1994, stating that there was no malicious intent in not paying the service tax. However, the demand was confirmed by invoking the extended period of limitation. The appellant challenged the invocation of the extended period, arguing that they had satisfactorily explained the reasons for not paying the service tax. The Tribunal considered this argument and set aside the impugned order, highlighting that since the appellant was not the service provider or receiver, the demand invoking the extended period of limitation was unjustified.3. The crux of the issue revolved around determining the service provider and service receiver in the transaction. The Tribunal analyzed the facts of the case, emphasizing that BNP Paribas was the money lender who secured the loan amount from COFACE, France, by paying an insurance guarantee. It was established that the service receiver was BNP Paribas, and the service provider was COFACE, France. The Tribunal clarified that the appellant was merely the beneficiary of the transaction between BNP Paribas and COFACE, France, without directly receiving any service. This clarification led to the conclusion that the appellant was not liable to pay service tax under the Reverse charge mechanism.In conclusion, the Tribunal set aside the impugned order, allowing the appeal in favor of the appellant and providing consequential relief.