2023 (10) TMI 290 - AT - Service Tax

Tribunal exempts liquidated damages from Service Tax, aligning with contract terms.

M/s Tata Steel Limited Versus Commr. of CGST & Central Excise, Jamshedpur

The Tribunal ruled in favor of the Appellant, setting aside the confirmed Service Tax demand on liquidated damages received from clients. It was ... Levy of service tax - liquidated damages received from their clients - HELD THAT:- This Bench in the case of Brahmaputra Crackers and Polymer Ltd. [2022 (5) TMI 255 - CESTAT KOLKATA] has gone through the issue in considerable details and has held that it is not possible to sustain the view taken by the Commissioner that since the delivery was not made within the time schedule, the Appellant agreed to tolerate the same for a consideration in the form of delay in delivery charges, which would be subjected to service tax under section 66E(e) of the Finance Act. As the issue in the present Appeal is identical, the impugned OIO set aside - appeal allowed. Issues Involved:The judgment deals with the confirmed Service Tax demand on liquidated damages received by the Appellant from their clients.Issue 1 - Service Tax on Liquidated Damages:The Appellant contested the confirmed Service Tax demand on liquidated damages, citing a previous Bench decision and a GST Circular. The Appellant argued that no Service Tax is required on liquidated damages, drawing parallels to a case involving South Eastern Coalfields and emphasizing that the liquidated damages were not for tolerating an act.The Tribunal analyzed the provisions of section 66E(e) of the Finance Act, defining services where one party agrees to refrain from an act, tolerate an act, or do an act for consideration. It was highlighted that the intention of the parties was not to breach the contract but to safeguard commercial interests. The recovery of liquidated damages was deemed not towards any service, as it aimed to ensure compliance with contract terms, not to tolerate defaulting behavior.The Tribunal referred to the decision in South Eastern Coalfields and M.P. Poorva Kshetra Vidyut Vitran, where it was established that delay in delivery charges, including liquidated damages, should not be subjected to service tax under section 66E(e) of the Finance Act. Consequently, the Tribunal set aside the impugned order and allowed the Appeal, following the cited case law.Conclusion:The judgment clarified that liquidated damages received by the Appellant from their clients should not be subject to Service Tax, as they were not for tolerating an act but for ensuring compliance with contract terms. The decision was based on the interpretation of relevant provisions and previous case law, ultimately ruling in favor of the Appellant.