2025 (9) TMI 404 - AT - Service Tax

Substantive exemption under Notification No.27/2012-ST upheld where diplomatic services proved; procedural lapses not fatal; remand

M/s PRO-INTERACTIVE SERVICES INDIA PVT LTD. Versus PRINCIPAL COMMISSIONER, CGST-NEW DELHI

M/s PRO-INTERACTIVE SERVICES INDIA PVT LTD. Versus PRINCIPAL COMMISSIONER, CGST-NEW DELHI - TMI 1. ISSUES PRESENTED AND CONSIDERED Issue 1: Whether services provided to foreign diplomatic/consular missions qualify for exemption under Notification No. 27/2012-ST when documentary conditions prescribed by the Notification (undertakings, authenticated certificates, invoice particulars, UINs, maintenance of accounts) are not fully complied with. Issue 2: Whether procedural irregularities or technical deficiencies in invoices/undertakings (e.g., omission of date of undertaking, serial number, UIN, or purpose) disentitle the provider to substantive exemption where the provision of services to diplomatic missions is otherwise established. Issue 3: Whether penalties and interest can be sustained where substantive compliance (provision of services and later production of protocol certificates) is established and there is no mala fide or deliberate concealment; and whether the extended period can be invoked. Issue 4: Whether a showcause notice issued without following CBIC pre-show-cause consultation instructions (Master Circular) is vitiated ab initio. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Legal framework: Notification No. 27/2012-ST exempts taxable services provided for official or personal use of foreign diplomatic/consular missions subject to conditions (i) authentication of entitlement by Protocol Division of Ministry of External Affairs, (ii) issuance/identification cards with UINs, (iii) copy of authenticated certificate and original undertaking with running serial numbers, (iv) maintenance of an account of undertakings, (v) invoice/challan to contain serial number and date of undertaking or UIN, and (vi) retention of documents by the provider. Issue 1 - Precedent Treatment: The adjudicating authority relied on authority holding that conditions of exemption notifications must be followed strictly. The Tribunal considered the Supreme Court's analysis distinguishing substantive from procedural conditions and applied that distinction to the Notification. Issue 1 - Interpretation and reasoning: The Court observed that the substantive condition embedded in Notification No. 27/2012 is the actual provision of services to diplomatic missions/agents. Procedural conditions relate to documentary formalities (undertakings, invoice particulars, maintenance of account). Where proof of provision of services and entitlement (via protocol certificates) exists, procedural non-compliance that does not defeat the purpose of the Notification should not nullify the exemption. The Court accepted that many certificates were produced (21 of 29) and that the department did not dispute the rendering of services. The Tribunal held that requiring strict compliance with procedural formalities in a manner that frustrates the object of the Notification would be an interpretation to be avoided. Issue 1 - Ratio vs. Obiter: Ratio: Where services to diplomatic missions are established and protocol certificates exist or are subsequently produced, denial of exemption solely on account of procedural documental omissions is inappropriate; entitlement to exemption should be allowed to the extent supported by certificates and documentary proof. Obiter: Distinction between substantive conditions (e.g., payment obligations in other contexts) and procedural ones as applied illustratively to other case law. Issue 1 - Conclusion: The Tribunal concluded that substantive compliance with Notification No. 27/2012 was fulfilled by proof of services rendered and by production (including belated production) of protocol certificates in respect of many transactions; remand was required for the adjudicating authority to verify certificates and allow exemption to the extent supported by certificates, with cum-duty benefit where applicable. Issue 2 - Legal framework: The Notification prescribes specific invoice and undertaking particulars (serial number, date, UIN, description). Tax law principles recognize a distinction between substantial and procedural conditions for exemption notifications. Issue 2 - Precedent Treatment: The Tribunal referred to the Supreme Court's reasoning (in Dilip Kumar) that conditions must be observed but also that interpretation defeating the object of the Notification is to be avoided; it distinguished the present facts from cases where non-compliance concerned a substantive precondition (e.g., payment of a cess) deemed essential. Issue 2 - Interpretation and reasoning: The Tribunal treated omissions such as non-mentioning of date of undertaking, serial number, or UIN as procedural/technical in nature. Where the underlying substantive fact (services to diplomatic missions) is not in dispute and documentary evidence (certificates, bank receipts, invoices) exists or is subsequently furnished, such technical deficiencies should not result in complete denial of exemption. The Tribunal noted the adjudicating authority may not have had opportunity to examine all certificates and therefore ordered verification on remand rather than upholding the blanket denial. Issue 2 - Ratio vs. Obiter: Ratio: Procedural defects in invoices/undertakings that do not undermine proof of entitlement do not automatically deprive an applicant of exemption; adjudicating authority must verify available certificates and allow exemption accordingly. Obiter: Specific examples of procedural defects described in the record are illustrative, not exhaustive. Issue 2 - Conclusion: Procedural or technical discrepancies in invoices/undertakings do not justify denial of the substantive exemption where services and entitlement are otherwise established; remand ordered for verification and grant of exemption to the extent of available authenticated certificates. Issue 3 - Legal framework: Penalties under the Finance Act and invocation of extended period of limitation require culpability or conditions prescribed by law; interest may follow confirmed dues. Principles of proportionality and requirement of mala fide/ deliberate concealment are relevant to penalty imposition. Issue 3 - Precedent Treatment: Authorities were cited by both sides regarding strictness of documentary compliance and penalty imposition. The Tribunal applied the principle that where non-compliance is procedural and there is no mala fide, penalty should not automatically follow. Issue 3 - Interpretation and reasoning: The Tribunal found no dispute that services were rendered and records/returns were maintained; several certificates were produced pre- or post-adjudication. Given the interpretational nature of the issue, absence of mala fide or deliberate concealment, and partial compliance, imposition of penalties and confirmation of full demand were inappropriate. The Tribunal set aside penalties and ordered remand for adjustment of duty where certificates support exemption; it noted limited admissions (certain missions for which no certificates exist) where demand stands. Issue 3 - Ratio vs. Obiter: Ratio: Penalties are not sustainable where denial of exemption is based on procedural lapses absent mala fide, and where substantive entitlement is established; penalties were set aside. Obiter: Remarks on possible mitigation (e.g., 50% restriction) were made in submissions but Tribunal disposed of penalties entirely. Issue 3 - Conclusion: Penalties and interest imposition were set aside; demand to the extent supported by certificates (and admissions for missions without certificates) to be determined on remand; extended period not invoked given absence of mala fide and interpretational nature. Issue 4 - Legal framework: CBIC Master Circular prescribes pre-show-cause consultation; judicial authorities have on occasions held non-compliance with administrative instructions vitiates showcause proceedings. Issue 4 - Precedent Treatment: The appellant relied on cases holding showcause notices issued without following pre-show-cause consultation may be void ab initio. The Tribunal considered these submissions but did not base final disposition solely on pre-consultation non-compliance. Issue 4 - Interpretation and reasoning: The Tribunal noted the appellant's contention that pre-show-cause consultation was not conducted as per CBIC Master Circular. However, the Tribunal's decision rested on substantive-procedural distinction, actual production/verification of protocol certificates, and absence of mala fide rather than invalidating the showcause notice ab initio on procedural consultation grounds. Issue 4 - Ratio vs. Obiter: Obiter: The Tribunal did not decide definitively that failure to follow pre-show-cause consultation vitiates the show cause notice in this matter; the point was raised but the remand and setting aside of penalties were ordered on other grounds. Issue 4 - Conclusion: The matter was remanded for verification of certificates and allowance of exemption where supported; the Tribunal did not annul the showcause notice solely for non-observance of pre-show-cause consultation but ordered substantive relief on verification and set aside penalties. Cross-reference: Issues 1 and 2 are interlinked - the Tribunal applied the substantive-versus-procedural distinction (Issue 1) to conclude that procedural invoice/undertaking defects (Issue 2) should not defeat entitlement; Issues 3 and 4 were resolved by reference to absence of mala fide and remand for verification rather than by nullifying proceedings.