2025 (10) TMI 393 - AT - Service Tax

Extension of corporate guarantee for related enterprises without consideration does not attract service tax; levy held unsustainable

M/s Enkay (India) Rubber Co Pvt Ltd Versus Commissioner of Central Excise, Goods and Service Tax, Gurugram-I

CESTAT CHANDIGARH - AT allowed the appeal, holding that extending a corporate guarantee for associated enterprises without consideration does not attract ... Levy of service tax - Corporate Guarantee given by the appellant for its associated enterprises without consideration - HELD THAT:- This issue is no longer res integra and has been decided by the Hon’ble Apex Court as well as by various benches of the Tribunal. In the case of M/s Huawei Telecommunication India Co Pvt Ltd [2025 (5) TMI 155 - CESTAT CHANDIGARH] this Tribunal has held that 'Extending Corporate Guarantee is not a taxable service.' In the case of Principal Commissioner of Central Tax vs. M/s Sindhu Trade Linkers [2023 (11) TMI 890 - CESTAT NEW DELHI], New Delhi bench of the Tribunal, after following the judgment of Hon’ble Supreme Court in Commr of CE & CGST vs. M/s Edelweiss Financial Services Ltd [2023 (4) TMI 170 - SC ORDER], has held that the act of providing corporate guarantees for the subsidiary units for grant of loan from financial institution without any consideration is not chargeable to service tax. The impugned order is not sustainable in law - Appeal allowed. 1. ISSUES PRESENTED AND CONSIDERED 1. Whether corporate guarantees provided by a registered service-provider to banks/financial institutions on behalf of its associated enterprises, in the absence of any consideration, constitute a 'service' taxable under the Finance Act. 2. Whether service tax can be levied on a notional or presumed consideration where no tangible consideration is received for provision of corporate guarantee. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxability of corporate guarantees without consideration Legal framework: The definition of 'service' under the Finance Act (Section 65(44) / Section 65B(44) as cited) requires (i) a provider, (ii) a receiver, and (iii) consideration for rendering the service. Section 67 (as cited) governs valuation where consideration exists. The levy provisions require a taxable activity coupled with consideration to attract service tax. Precedent treatment (followed): The Tribunal and the Hon'ble Apex Court decisions cited in the judgment (including the apex authority and multiple Coordinate/Tribunal benches) have held that corporate guarantees given by an entity for its associates, when provided without any consideration, are not taxable as 'banking and other financial services.' Those authorities were followed by the Court in the present matter. Interpretation and reasoning: The Court analyzed the composite requirement for taxability and found no evidence of any consideration flowing to the guarantee-provider. The reasoning emphasizes that mere conferral of a benefit on the principal (associated enterprise) or the occurrence of an economically beneficial consequence does not, by itself, constitute consideration unless there is a quantifiable, received or payable quid pro quo to the provider. The Court rejected reliance on notional or assumed benefits to fix taxable value in the absence of evidentiary support of consideration. Ratio vs. Obiter: Ratio - Where a corporate guarantee is extended by an entity to secure credit facilities for associated enterprises and no consideration is received by the guarantor (directly or indirectly), such activity does not satisfy the statutory definition of 'service' and is not taxable. Obiter - Observations on the unsustainability of applying Safe Harbour Rules or other mechanisms to impute a consideration where factual foundation is absent are persuasive but ancillary. Conclusions: The Court concluded that corporate guarantees provided without consideration are not services taxable under the Finance Act; the impugned demand based on such grounds is unsustainable and must be set aside. Issue 2: Levy based on notional or presumed consideration Legal framework: Taxation requires ascertainable consideration; provisions for valuation do not empower imposition of tax on notional value when statutory prerequisites of a taxable service (including consideration) are missing. Precedent treatment (followed/distinguished): The Court followed coordinate Tribunal decisions and the Apex authority holding that absent consideration, imputing a notional value for service tax is impermissible. Earlier Tribunal decisions cited that issuing bank guarantees by banks (where consideration is charged) differs materially from corporate guarantees issued by non-banking associates without consideration. Interpretation and reasoning: The Court held that the Revenue cannot base demands on assumptions or presumptions (for instance, that associates obtained loans at lower rates thereby creating a differential as implied consideration) without evidence. Use of Safe Harbour Rules or hypothetical percentages to determine consideration was rejected where the factual matrix does not show receipt of any consideration by the guarantor. The decision stresses evidential burden on Revenue to demonstrate flow of consideration. Ratio vs. Obiter: Ratio - Absent factual evidence of consideration, service tax cannot be levied by imputing a notional value; demands grounded on assumption/presumption are invalid. Obiter - Remarks on comparative treatment of bank-issued guarantees versus corporate guarantees serve explanatory purpose but do not alter the core ratio. Conclusions: The impugned demand based on a presumed or notional consideration is quashed; valuation principles and Safe Harbour applications cannot be used to create tax liability where the statutory element of consideration is absent. Cross-references and consequential relief The Court expressly relied on and followed the reasoning of prior Tribunal and Apex decisions holding non-chargeability in similar factual circumstances; those ratios were applied to set aside the impugned order and allow the appeal. Where prior orders had accepted payment on unrelated charges, the Court noted that Section 73(3)-type consequences may apply and penalties premised on defective initiation were subject to reconsideration consistent with precedent (as applied by co-ordinate benches). Final disposition (legal conclusion) The Court held that corporate guarantees furnished to secure loans/overdrafts for associated enterprises, when rendered without any consideration to the guarantor, do not constitute a taxable service under the Finance Act; the Revenue's demand based on such an assertion is unsustainable and is set aside, with consequential relief as per law.