2025 (8) TMI 800 - AT - Service Tax

Demurrage Charges Linked to Sea Transport Are Not Taxable Under Section 66E of Finance Act

Commissioner of Central Excise & Service Tax LTU Mumbai Versus Shipping Corporation of India Ltd

Commissioner of Central Excise & Service Tax LTU Mumbai Versus Shipping Corporation of India Ltd - TMI 1. ISSUES PRESENTED and CONSIDERED Whether demurrage charges arising from delay in loading or discharge of cargo at port constitute a taxable 'declared service' under section 66E(e) of the Finance Act, 1994. Whether demurrage, as a component linked to transportation of goods by sea, can be disaggregated and separately taxed despite the exemption available under section 66D of the Finance Act, 1994 for transportation services by vessel from outside India to customs station of clearance in India. Applicability and interpretation of the 'declared service' concept under section 66E(e) and the scope of legal fiction in taxing statutes. Relevance and precedence of Place of Provision of Service Rules, 2012, particularly rules 8 and 14, in determining taxability of demurrage charges. Whether the contractual nature of demurrage as a charge for overstaying beyond agreed laytime amounts to an independent taxable service or forms part of the exempted transportation service. Impact of subsequent clarifications and circulars issued by the Central Board of Indirect Tax & Customs (CBIC) on the interpretation of 'declared service' under section 66E(e). 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxability of Demurrage Charges under Section 66E(e) of the Finance Act, 1994 Legal framework and precedents: Section 66E(e) defines a 'declared service' as including 'agreeing to the obligation to refrain from an act, or to tolerate an act or situation, or to do an act.' Demurrage was sought to be classified within this category. The Finance Act, 1994, and its amendments, along with the Place of Provision of Service Rules, 2012, provide the statutory framework. Court's interpretation and reasoning: The Court observed that demurrage is not expressly enumerated as a declared service but was fitted into section 66E(e) by the revenue. The Court emphasized that this provision is a legal fiction and must be strictly construed within its intended purpose. The Court cited authoritative precedent that legal fictions are to be limited to their purpose and not extended beyond their legitimate scope. Key evidence and findings: Demurrage is a contractual charge for delay beyond agreed laytime in vessel operations. It is inherently linked to the transportation of goods by sea and serves as a disincentive for delay, reflecting a cost borne by the vessel operator due to overstay at the port. Application of law to facts: The Court found that demurrage cannot be treated as an independent 'declared service' under section 66E(e) because it does not represent a standalone contractual agreement to refrain from or tolerate an act but is integrally connected to the transportation service, which is exempt. Treatment of competing arguments: The revenue argued that demurrage fits the declared service description and is taxable. The Court rejected this, noting the lack of a separate contractual nexus and the legal fiction's limited scope. Conclusion: Demurrage charges do not constitute a taxable declared service under section 66E(e) when they form part of the transportation of goods by sea exempted under section 66D. Issue 2: Exemption of Transportation of Goods by Sea under Section 66D and Its Impact on Taxability of Demurrage Legal framework and precedents: Section 66D provides a negative list of services exempt from service tax, including transportation of goods by vessel from outside India to customs clearance in India. The adjudicating authority relied on section 66F(3) and its Explanation regarding bundled services. Court's interpretation and reasoning: The Court agreed with the adjudicating authority that demurrage is inseparable from the transportation service and thus benefits from the exemption. The Court noted that demurrage is a contractual mechanism to mitigate risk associated with vessel overstay, inherently linked to the exempt transportation service. Key evidence and findings: The contractual terms of 'laytime' and 'demurrage' are standard in charter parties and relate directly to the transportation activity. The Court noted that demurrage arises from operational realities of vessel berthing and loading delays, not from a separate service. Application of law to facts: The Court applied the legal principle that bundled services containing an exempted service cannot be taxed separately if the non-exempt component is not independently identifiable. Treatment of competing arguments: The revenue contended that demurrage was billed separately and should be taxed. The Court held that separate billing does not alter the intrinsic nature of the charge as part of transportation. Conclusion: Demurrage charges linked to transportation of goods by sea are exempt from service tax under section 66D and cannot be taxed separately. Issue 3: Interpretation and Application of Place of Provision of Service Rules, 2012 Legal framework and precedents: The Place of Provision of Service Rules, 2012, govern the territorial scope of service tax. Rule 8 relates to services directly linked to goods and their movement, while Rule 14 deals with services provided outside India. Court's interpretation and reasoning: The Court considered the applicability of Rule 8 with precedence over Rule 14. It found that the activity (demurrage) occurred abroad (outside India) in terms of the place of provision rules and was thus exempted. Key evidence and findings: The demurrage charges arose from vessel delay at port during international shipping operations, and the place of provision was outside India. Application of law to facts: The Court applied Rule 8 to hold that the service was rendered outside India, supporting exemption. Treatment of competing arguments: The revenue challenged the exemption, invoking Rule 14. The Court held Rule 8 took precedence in this context. Conclusion: Place of Provision of Service Rules, 2012, support the non-taxability of demurrage charges as the service provision occurred outside India. Issue 4: Nature of Demurrage as a Contractual Arrangement and Its Implications for Taxability Legal framework and precedents: Demurrage is a contractual charge arising from delay beyond agreed laytime in charter parties. The Court referred to the nature of contractual obligations and the requirement of a standalone agreement for taxability under section 66E(e). Court's interpretation and reasoning: The Court emphasized that demurrage is a contractual arrangement integral to transportation and not an independent contract to refrain from or tolerate an act. Key evidence and findings: The contractual terms of laytime and demurrage are standard and relate to operational realities of vessel movement and cargo handling. Application of law to facts: Since demurrage is part of the transportation contract, it does not qualify as a separate declared service. Treatment of competing arguments: The revenue's argument that separate billing indicated a separate service was rejected as form cannot override substance. Conclusion: Demurrage is not an independent taxable service but part of the exempt transportation service contract. Issue 5: Impact of CBIC Circular No. 214/1/2023-ST and Related Jurisprudence on the Interpretation of Section 66E(e) Legal framework and precedents: The CBIC circular clarified the scope of section 66E(e) in the context of 'liquidated damages' and similar agreements, emphasizing the need for a standalone contractual agreement with a clear nexus between supply and consideration. Court's interpretation and reasoning: The Court relied on the circular and prior Tribunal decisions, which held that taxability under section 66E(e) requires an independent agreement to refrain from or tolerate an act, with consideration flowing specifically for that obligation. Key evidence and findings: The circular distinguished between standalone agreements and contingent liabilities embedded within other services. Application of law to facts: The Court found that demurrage does not constitute a standalone agreement but is a contingent liability arising from the transportation contract. Treatment of competing arguments: The revenue's reliance on section 66E(e) without the presence of a standalone agreement was negated by the circular's guidance. Conclusion: CBIC's circular and related jurisprudence confirm that demurrage charges do not fall within the taxable scope of section 66E(e) absent a standalone contractual obligation. Issue 6: Principles Governing Construction of Taxing Statutes and Legal Fictions Legal framework and precedents: The Court reiterated established principles that taxing statutes are to be strictly and literally construed, and legal fictions created therein are limited to their intended purpose. Court's interpretation and reasoning: The Court cited authoritative judgments emphasizing that legal fictions cannot be extended beyond their legitimate field and must be confined to the purpose for which they were created. Key evidence and findings: The Court noted that the 'declared service' under section 66E(e) is a legal fiction and must be interpreted narrowly. Application of law to facts: The Court applied these principles to reject the extension of section 66E(e) to demurrage charges embedded within exempt transportation services. Treatment of competing arguments: The revenue's expansive interpretation was curtailed by adherence to strict construction principles. Conclusion: The legal fiction in section 66E(e) must be confined to its intended purpose and cannot be stretched to tax demurrage charges linked to exempt transportation services.