2024 (6) TMI 1469 - AT - Service Tax

Foreign trainer expenses for travel and accommodation cannot be included in taxable value under reverse charge mechanism

Toyota Kirloskar Auto Parts Pvt. Ltd., Versus Commissioner of Central Excise (Appeals) (LTU) Bangalore

Toyota Kirloskar Auto Parts Pvt. Ltd., Versus Commissioner of Central Excise (Appeals) (LTU) Bangalore - TMI The core legal questions considered by the Tribunal in this appeal are:1. Whether the expenditure incurred by the appellant towards travel, conveyance, and stay of foreign trainers, who provide technical assistance under a Technical Assistance Agreement with a foreign service provider, forms part of the value of taxable service under the Finance Act, 1994, and is liable to service tax under the Reverse Charge Mechanism (RCM).2. Whether Rule 5 of the Service Tax (Determination of Value) Rules, 2006, which includes expenditure or cost incurred by the service provider in the course of providing taxable service as part of the taxable value, is valid and applicable in this context.3. The applicability of service tax liability under Section 66A of the Finance Act, 1994, which was introduced with effect from 18.04.2006, particularly in relation to the period before and after this date.4. Whether the appellant, as the recipient of the service from a foreign service provider, is liable to pay service tax on the entire consideration including the travel-related expenses of foreign trainers under the provisions of the Finance Act and Service Tax Rules.Issue-wise Detailed Analysis:Issue 1: Inclusion of Travel, Conveyance, and Stay Expenses in Taxable Value of Technical Assistance ServiceThe appellant entered into a Technical Assistance Agreement with a foreign entity, under which technical assistance including training was provided. The training was conducted either in Japan or in India by foreign trainers. The appellant incurred expenses for travel, conveyance, and stay of foreign trainers when training was imparted in India.The department issued a Show Cause Notice demanding differential service tax on these expenses, contending that such expenses form part of the value of taxable service under Rule 5 of the Service Tax (Determination of Value) Rules, 2006, and thus liable to service tax under RCM.The appellant challenged this demand, relying on the Supreme Court decision in Inter-Continental Consultants & Technocrats Pvt. Ltd. vs. Union of India, which held that Rule 5 is ultra vires Section 67 of the Finance Act, 1994, and that only the gross amount charged by the service provider as consideration for the taxable service can be included in the taxable value.The Tribunal examined the agreement and noted that the contract was inclusive of all fees and expenses charged by the foreign service provider, and the appellant was not reimbursed by the service provider for the travel-related expenses. The department's reliance on Rule 5 to include these expenses in taxable value was found to be inconsistent with the Supreme Court ruling.The Tribunal further noted that the Board's Circular dated 02.07.1997, which excludes reimbursed expenses from taxable value, was inapplicable since there was no reimbursement from the foreign service provider to the appellant.Therefore, the Tribunal concluded that the travel, conveyance, and stay expenses incurred by the appellant for foreign trainers are not includable in the value of taxable service for service tax purposes.Issue 2: Validity and Application of Rule 5 of Service Tax (Determination of Value) Rules, 2006Rule 5(1) states that expenditure or cost incurred by the service provider in the course of providing taxable service shall be included in the value of the taxable service. The department invoked this Rule to justify inclusion of travel-related expenses in the taxable value.However, the Supreme Court in the Inter-Continental Consultants case held that Rule 5(1) is ultra vires Section 67 of the Finance Act, 1994, as it attempts to tax costs incurred by the service provider beyond the actual consideration for the taxable service. The Court emphasized that only the gross amount charged by the service provider for the taxable service can be taxed, nothing more.The Tribunal applied this precedent and held that Rule 5 cannot be used to include travel, conveyance, and stay expenses in the taxable value when such expenses are not part of the consideration charged by the foreign service provider.Issue 3: Applicability of Service Tax under Section 66A and Period of LiabilitySection 66A of the Finance Act, 1994, which introduced the Reverse Charge Mechanism, was inserted with effect from 18.04.2006. The appellant had paid service tax under RCM on the consideration charged by the foreign service provider from 18.04.2006 onwards, but disputed liability for the travel-related expenses.The Commissioner (Appeals) had dropped the demand for the period prior to 18.04.2006 but confirmed the demand for the period 18.04.2006 to 31.03.2008. The Tribunal concurred with this approach, noting that service tax under RCM is applicable only from the date of insertion of Section 66A.Further, the Tribunal referred to Rule 7 of the Service Tax (Determination of Value) Rules, 2006, which provides that the value of taxable service received under Section 66A shall be the actual consideration charged for the services provided or to be provided. This supports the conclusion that only the actual consideration charged by the foreign service provider is taxable, excluding incidental expenses borne by the recipient.Issue 4: Liability of the Appellant as Recipient of Service under Reverse Charge MechanismThe Tribunal examined the provisions of the Finance Act and Service Tax Rules, including Section 65(7), Rule 2(1)(d)(iv) of the Service Tax Rules, and Sections 66, 67, 68 of the Finance Act, 1994. It was held that the appellant, as the recipient of the service from a foreign service provider, is liable to pay service tax under RCM on the consideration charged by the foreign service provider.However, since the travel, conveyance, and stay expenses were not charged by the foreign service provider but incurred by the appellant independently, such expenses cannot be included in the taxable value under RCM.The Tribunal rejected the department's contention that the appellant's expenditure towards foreign trainers' travel and stay formed part of the taxable value, as there was no reimbursement or separate charge from the foreign service provider for these expenses.Competing Arguments and TreatmentThe department argued that Rule 5 mandates inclusion of all expenditure incurred by the service provider in the taxable value, and that the appellant's expenses for foreign trainers are part of the consideration for the technical assistance service.The appellant countered by citing the Supreme Court ruling invalidating Rule 5, and argued that only the gross amount charged by the foreign service provider is taxable, excluding incidental expenses borne by the appellant.The Tribunal sided with the appellant, applying the binding Supreme Court precedent, and held that the department's reliance on Rule 5 was misplaced and contrary to law.ConclusionsThe Tribunal held that:The expenditure incurred by the appellant towards travel, conveyance, and stay of foreign trainers is not includable in the taxable value of technical assistance service under the Finance Act, 1994 for the period 18.04.2006 to 31.03.2008.Rule 5 of the Service Tax (Determination of Value) Rules, 2006 is ultra vires Section 67 of the Finance Act, 1994 and cannot be applied to include such expenses in the taxable value.The appellant is liable to pay service tax under RCM only on the actual consideration charged by the foreign service provider, which excludes the travel-related expenses borne by the appellant.The demand of differential service tax on the travel, conveyance, and stay expenses along with interest and penalties is not sustainable and is set aside.Significant Holdings:The Tribunal relied heavily on the Supreme Court's authoritative reasoning in the Inter-Continental Consultants case, including the following verbatim excerpt:'Section 66 levies service tax at a particular rate on the value of taxable services. Section 67(1) makes the provisions of the section subject to the provisions of Chapter V, which includes Section 66. This is a clear mandate that the value of taxable services for charging service tax has to be in consonance with Section 66 which levies a tax only on the taxable service and nothing else. There is thus inbuilt mechanism to ensure that only the taxable service shall be evaluated under the provisions of 67. Clause (1) of sub-section (1) of Section 67 provides that the value of the taxable service shall be the gross amount charged by the service provider for such service. Reading Section 66 and Section 67(1)(i) together and harmoniously, it seems clear to us that in the valuation of the taxable service, nothing more and nothing less than the consideration paid as quid pro quo for the service can be brought to charge. Sub-section (4) of Section 67 which enables the determination of the value of the taxable service in such manner as may be prescribed' is expressly made subject to the provisions of sub-section (1). The thread which runs through Sections 66, 67 and Section 94, which empowers the Central Government to make rules for carrying out the provisions of Chapter V of the Act is manifest, in the sense that only the service actually provided by the service provider can be valued and assessed to service tax. We are, therefore, undoubtedly of the opinion that Rule 5(1) of the Rules runs counter and is repugnant to Sections 66 and 67 of the Act and to that extent it is ultra vires. It purports to tax not what is due from the service provider under the charging Section, but it seeks to extract something more from him by including in the valuation of the taxable service the other expenditure and costs which are incurred by the service provider in the course of providing taxable service. What is brought to charge under the relevant Sections is only the consideration for the taxable service. By including the expenditure and costs, Rule 5(1) goes far beyond the charging provisions and cannot be upheld.'The Tribunal also emphasized the application of Rule 7 of the Service Tax (Determination of Value) Rules, 2006, which states:'The value of taxable service received under the provisions of section 66A, shall be such amount as is equal to the actual consideration charged for the services provided or to be provided.'These principles form the core legal foundation for the Tribunal's decision to allow the appeal and set aside the demand for differential service tax on travel-related expenses.