2019 (7) TMI 1752 - AT - Service Tax

Tax Demand Overturned: Tribunal Rules Employee Salary Remittances to Foreign Associates Not Taxable Under Finance Act.

M/s. General Motors India Pvt Ltd. Versus Commissioner of Central Excise & Service Tax, Pune

M/s. General Motors India Pvt Ltd. Versus Commissioner of Central Excise & Service Tax, Pune - 2021 (44) G. S. T. L. 394 (Tri. - Mumbai) Issues:- Challenge against demand of tax under sections 73, 75, and 78 of Finance Act, 1994 for the period from October 2009 to March 2014.- Interpretation of 'taxable service' under pre-'negative list' and 'negative list' regimes.- Taxability of salaries/cost of employees remitted to foreign associates under 'manpower recruitment and supply agency service.'- Applicability of Tribunal decisions in similar cases.- Definition of 'manpower recruitment or supply agency' and 'service' under Finance Act, 1994.- Consideration of reimbursable expenses in tax liability.- Finality of Tribunal decisions and Supreme Court rulings on taxability issues.- Implications of rule 5 of Service Tax Rules, 2006 on reimbursable expenses.- Conformity with section 65B(44) of Finance Act, 1994 for taxability determination.- Coverage of remittance within 'service' under the context of Supreme Court ruling.Analysis:1. The appeal challenges a tax demand under sections 73, 75, and 78 of the Finance Act, 1994 for the period from October 2009 to March 2014. The dispute involves the interpretation of 'taxable service' under both the pre-'negative list' and 'negative list' regimes, with differing meanings assigned to the term under each scheme.2. The issue revolves around the taxability of salaries/cost of employees remitted to foreign associates under the category of 'manpower recruitment and supply agency service.' The appellant, part of a global conglomerate, entered into secondment agreements with foreign associates, leading to the demand for tax payment.3. The appellant argues that the taxability issue is covered by a previous Tribunal decision and a Supreme Court ruling. The Tribunal's decision in a similar case and the Supreme Court's ruling on reimbursable expenses are cited to support the appellant's position.4. The Authorized Representative relies on the definitions of 'manpower recruitment or supply agency' and 'service' under the Finance Act, 1994 to assert that the deputation of employees by foreign associates falls under taxable services. Previous Tribunal decisions are also referenced to support this argument.5. The Tribunal's decision in a specific case is highlighted, where it was held that the global employees working under the appellant were considered employees with an employer-employee relationship, leading to the setting aside of the orders-in-original.6. The Tribunal's decision in another case, not considering the findings of a previous case, is discussed. The relevance of a Supreme Court ruling on reimbursable expenses is emphasized, impacting the determination of tax liability.7. Decisions cited pertain to the period before the 'negative list' regime. The demand for the pre-'negative list' period is set aside based on the Tribunal's decision in a specific case.8. The impugned order lacks a finding on taxability for the period after the introduction of the 'negative list' regime. The coverage of deputation of employees under 'manpower recruitment or supply agency service' is questioned, especially post-July 2012.9. The reimbursability of payments to overseas entities is a crucial factor in determining tax liability. The coverage of such remittances within the scope of 'service' is scrutinized in light of a Supreme Court ruling.10. Ultimately, the demand for the period after July 2012 is also set aside, and the appeal is allowed based on the above considerations.