2016 (3) TMI 810 - AT - Service Tax

Tribunal grants appeal, finds activities not taxable, reimbursements non-taxable, and appellant a pure agent.

Reliance ADA Group Pvt Ltd Versus Commissioner of Service Tax, Mumbai-IV

The tribunal allowed the appeal, setting aside the impugned order, and granted consequential relief. It held that the appellant's activities did not ... Sharing of resources and cost / expenses with the group companies - Business Support Services provided for the period 2006-07 and 2007-08 - Section 65(105)(zzzq) of the Finance Act, 1994 - Appellant providing services by way of accounting and processing of certain transaction and certain operational assistance as required by the Participating Group companies under an agreement between the appellant and the group companies - Held that:- the appellant is merely acting as a manager/trustee to incur expenses on behalf of the Participating Group Companies. The object of entering into such cost sharing arrangement is to reduce the cost of operation of the Participating Group Companies. The activities carried out by the Appellant enables the Participating Group Companies to share the common services, the best available talent and resources required for carrying out their business activities. No taxable service is provided by the appellant and therefore in absence of rendition of such service by the appellant to the Participating Group Companies, the demand of Service tax do not sustain as Service tax is a levy on rendition of taxable service. Demand of Service tax vis-a-vis Pure Agent - Rule 5(2) of Service Tax Valuation Rules - Held that:- the goods or services procured by the appellant for the use of Participating Group Companies are not availed by the Appellant for its own use or consumption, and he has no function or existence other than as Trustee / Manager (agent) of the Participating Group Companies cost sharing arrangement. - Therefore, the amount so recovered by the appellant is in the capacity of a Pure Agent and thus the same cannot be subjected to the Service tax followed by Pharmalinks Agency (I) Pvt. Ltd. Vs CCE [2014 (10) TMI 284 - CESTAT MUMBAI]. Availment of CENVAT Credit - CA certificate submitted providing details of the CENVAT Credit available during the period in question but was not noticed by the Adjudicating Authority - Held that:- even if the activities carried out by the appellant are subjected to Service tax, the Participating Group Companies who were duly registered with the Service tax authorities during the relevant period and were discharging Service tax on their activities, would be entitled to avail the CENVAT Credit thereof. Demand of Servive tax - Invokation of extended period of limitation - Held that:- by relying on the judgment of CCEx Vs Reclamation Welding Ltd. [2014 (8) TMI 186 - CESTAT AHMEDABAD], when recipient of same group company is eligible to avail the CENVAT Credit of the duty paid by the assessee, the assessee could not be alleged to have mala fide intent to evade payment of duty and accordingly extended period of limitation cannot be invoked. Therefore, the entire demand and any contrary finding recorded for invoking extended period, are liable to be set aside. - Decided in favour of appellant with consequential relief Issues Involved:1. Classification of services provided by the appellant.2. Chargeability of Service Tax on the services provided.3. Applicability of the 'Pure Agent' concept.4. Invocation of extended period for demanding Service Tax.5. Revenue neutrality and eligibility for CENVAT Credit.Detailed Analysis:1. Classification of Services Provided by the Appellant:The primary issue was whether the activities of the appellant in 2006-07 and 2007-08 qualified as taxable services under 'Business Support Services' as per section 65(105)(zzzq) of the Finance Act, 1994. The definition of 'Support services of business or commerce' includes various activities such as accounting, processing transactions, and operational or administrative assistance. The appellant's role was limited to coordinating and monitoring a cost-sharing arrangement among its Participating Group Companies, where it procured services from third parties and allocated costs based on usage. The adjudicating authority's finding that the appellant provided these services was contradicted by evidence showing that the appellant merely facilitated procurement, not provision, of services.2. Chargeability of Service Tax on the Services Provided:The adjudicating authority alleged that the appellant failed to register and discharge Service Tax for 2006-07 and 2007-08. The appellant argued that it operated on a 'no profit, no loss' basis, acting as a pure agent, and therefore, the reimbursements received were not taxable. The tribunal found that the reimbursements of costs incurred by the appellant could not be regarded as consideration for taxable services, as the appellant did not provide services but merely facilitated procurement.3. Applicability of the 'Pure Agent' Concept:The tribunal examined whether the appellant could be considered a 'Pure Agent' under Rule 5(2) of the Service Tax (Determination of Value) Rules, 2006. The appellant met the conditions of a pure agent, as it incurred expenses on behalf of the Participating Group Companies, did not hold title to the goods or services procured, and recovered only the actual amounts paid. The tribunal concluded that the appellant's activities fell within the 'Pure Agent' framework, and thus, the reimbursements were not subject to Service Tax.4. Invocation of Extended Period for Demanding Service Tax:The tribunal found that the adjudicating authority erroneously invoked the extended period for demanding Service Tax. The Participating Group Companies were eligible for CENVAT Credit, making the case revenue-neutral. The adjudicating authority acknowledged the absence of any intention to evade tax, and the tribunal held that the extended period could not be invoked due to the revenue-neutral nature of the transactions.5. Revenue Neutrality and Eligibility for CENVAT Credit:The tribunal noted that the Participating Group Companies, being registered with the Service Tax authorities, were entitled to avail CENVAT Credit for the Service Tax paid by the appellant. This made the entire exercise revenue-neutral. The tribunal cited several precedents supporting the position that in cases of revenue neutrality, extended periods for tax demands are not justified.Conclusion:The tribunal allowed the appeal, setting aside the impugned order, and granted consequential relief. The tribunal held that the appellant's activities did not constitute taxable services under 'Business Support Services,' the reimbursements received were not taxable, and the appellant acted as a pure agent. The extended period for demanding Service Tax was not applicable due to the revenue-neutral nature of the transactions.