2025 (10) TMI 1039 - AT - Service Tax

Banks not liable under Reverse Charge Mechanism for foreign bank remittance services; exporter/importer held liable instead

CESTAT MUMBAI - AT held that Indian banks are not recipients of services by foreign banks in export/import transactions for settling foreign remittances ... Recipients of service - appellants banks in India - export/import transaction involving transfer/ exchange of documents and transfer of money on behalf of their client exporters/importers - liability of appellant to pay service tax on ‘bank charges’ deducted/charged byforeign banks or foreign banks through correspondent/intermediary banks, under Reverse Charge Mechanism. HELD THAT:- Both during pre-negative list period and post 0.07.2012 have been examined in detail by the Co-ordinate Bench of this Tribunal in the case of State Bank of Bikaner & Jaipur [2020 (8) TMI 80 - CESTAT NEW DELHI], wherein it was held that the banks in India are not the recipient of any service rendered by foreign banks in the export/import transaction for settling the foreign remittances, and there is no liability of payment of service tax thereon on Reverse Charge Mechanism (RCM) basis. The facts of the present case and various documents placed on record indicate that it involves contract of purchase of crude oil between M/s Reliance Industries Ltd. and Egyptian Gen Petroleum Corporation of providing for establishing a is an irrevocable letter of credit for every shipment covering its value. Such contracts specifically provide for all banking charges and commissions are for the account of the Indian importer/buyer - In the case of BGR Energy Systems Limited Vs. Addl. Commissioner of GST & Central Excise, Chennai [2019 (11) TMI 1130 - MADRAS HIGH COURT] involving a dispute where the issue of payment of service tax, whether to be paid by the exporter or the exporter’s bank in India was decided by the Hon’ble High Court of Madras in holding that the exporter alone is liable to pay the service tax and there is no involvement of service and consequential payment of service tax by the exporter’s bank. The confirmation of service tax liability on appellants banks in India, in an export/import transaction involving transfer/exchange of documents and transfer of money on behalf of their client exporters/importers, on RCM basis, does not stand the legal scrutiny. Therefore, the adjudged demands along with interest and imposition of penalty on the appellants, in impugned orders dated 30.11.2016, 31.03.2017 and 06.02.2019 are not legally sustainable and thus these are liable to be set aside. The impugned orders are set aside - apeal allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether Indian banks acting as advising/issuing banks in export/import transactions are 'recipients of service' of foreign banks for purposes of service tax when foreign banks deduct charges from remittances or levy charges for issuance/amendment of letters of credit and related banking operations. 2. Whether Indian banks are liable to discharge service tax under the reverse charge mechanism (RCM) in respect of foreign bank charges deducted/charged by foreign or intermediary banks in export/import transactions. 3. Whether demands (including interest and penalties) raised on Indian banks for the tax periods in issue are legally sustainable in light of applicable valuation and limitation principles governing service tax liability. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Whether Indian banks are 'recipients of service' of foreign banks in export/import transactions Legal framework: The liability to pay service tax under RCM depends on whether a taxable service is provided and whether the person in India is the recipient; valuation principles require a 'consideration' flowing from recipient to provider for the taxable service. Relevant statutory concepts include definition of 'banking and other financial services' and Section 67's concept of 'value' and 'consideration'. Precedent treatment: The Tribunal relied on earlier coordinate bench decisions that examined identical factual matrices and concluded that Indian banks are not the recipients of foreign-bank services in such transactions. The Tribunal also considered a High Court decision that reached the opposite result in a different factual context and analyzed its reasoning. Interpretation and reasoning: The Tribunal analysed the operational mechanics of letters of credit, URC/UCP protocols and the role of issuing/advising/intermediary banks. It found that the Indian bank acts as agent/facilitator for the exporter/importer and does not receive services from the foreign/intermediary bank in a manner that makes it a 'recipient' for tax purposes. Critical to this conclusion was the absence of any contractual agreement or direct knowledge between the Indian bank and the foreign bank concerning the provision of those specific services, and the absence of a flow of consideration from the Indian bank to the foreign bank. The Tribunal emphasized the distinction between payment obligations borne by the exporter/importer and any incidental facilitation by the Indian bank. Ratio vs. Obiter: Ratio - where the Indian bank merely facilitates export/import transactions and does not contract with or pay consideration to the foreign/intermediary bank, it is not the recipient of the foreign bank's taxable services. The discussion distinguishing departmental trade notices and interim orders relied on by the Revenue is integral to the holding and therefore part of the ratio. Observations on international banking protocols and factual permutations in other cases are explanatory but supportive. Conclusion: The Tribunal concluded Indian banks in the described export/import transactions are not recipients of foreign-bank services for service tax purposes and therefore cannot be made liable on that basis. Issue 2 - Liability to pay service tax under reverse charge mechanism for foreign bank charges Legal framework: RCM triggers tax liability on the recipient where a taxable service is provided and consideration is payable by the recipient; valuation under Section 67 requires that the gross amount charged be 'for such service provided' and that consideration must flow to the service provider. Precedent treatment: The Tribunal followed coordinate bench authority which held against departmental attempts to impose RCM on Indian banks under similar circumstances. The Tribunal distinguished administrative trade circulars and certain interim tribunal orders relied upon by the Revenue as prima facie or not binding. Interpretation and reasoning: Applying the 'consideration' concept, the Tribunal reasoned that the foreign/intermediary bank charges are borne by the exporter/importer and deducted at source; there is no quid pro quo flowing from the Indian bank to the foreign bank. The Tribunal invoked authority reinforcing that only amounts paid 'for such service provided' are includible in taxable value and that mere contractual conditions or steps in a transaction do not convert borne expenses into consideration for taxable services at the hands of a different party. The Tribunal also addressed and rejected reliance on a departmental Trade Notice, explaining that such circulars cannot override statutory scheme and authoritative judicial pronouncements; the Madras High Court decision in a distinct factual setting was considered but did not displace the coordinate bench precedent relied upon here. Ratio vs. Obiter: Ratio - absent payment/consideration by the Indian bank to the foreign/intermediary bank and absent a contractual service relationship, RCM cannot be invoked to fasten tax liability on the Indian bank for foreign bank charges. Observations on trade notices and international banking rules serve as supporting ratio where they clarify why administrative positions are insufficient. Conclusion: The Tribunal held there is no legal basis to fasten RCM liability on Indian banks for foreign bank charges deducted/levied in the described export/import transactions. Issue 3 - Sustainability of demands, interest and penalties imposed on Indian banks for the periods in dispute Legal framework: Adjudication of tax demands requires a valid foundation of liability; interest and penalties flow from confirmed tax demand. Limitation rules apply for period of demand. Valuation principles and the requirement of consideration determine underlying taxability. Precedent treatment: The Tribunal applied the conclusions from coordinate bench decisions and relevant High Court authority dealing with valuation and recipient status to evaluate the legal sustainability of departmental demands and penalties. Interpretation and reasoning: Given the finding that Indian banks were not recipients of the foreign banks' services and that no consideration flowed from them to foreign banks, the Tribunal found the foundational tax liability to be absent. Consequently, interest and penalties predicated on that liability could not stand. The Tribunal also considered submissions on limitation but disposed the appeals on substantive grounds of non-liability, rendering limitation analysis unnecessary to alter outcome for the challenged periods. Ratio vs. Obiter: Ratio - demands, interest and penalties premised on RCM liability in the factual circumstances are not sustainable. Observations on limitation and alternative evidence were incidental. Conclusion: The adjudged demands, interest and penalties against the Indian banks for the periods in issue were set aside as legally unsustainable. Cross-reference and final operative conclusion All three appeals were heard together; the Tribunal, following coordinate bench authority and applying statutory valuation and consideration principles, concluded that (i) Indian banks acting as advising/issuing banks do not become recipients of foreign/intermediary bank services in the described export/import arrangements, (ii) RCM cannot be invoked to tax foreign bank charges at the hands of those Indian banks, and (iii) consequent demands, interest and penalties are liable to be set aside.