2025 (11) TMI 1339 - AT - Service Tax

Service tax demands quashed, loans in Advance Ledger upheld, except late ST-3 fee; ss.77 and 78 inapplicable

M/s. Forum Projects Private Limited Versus Commissioner of Service Tax Audit, Kolkata

CESTAT Kolkata allowed the appeal substantially. It held that amounts recorded in the 'Advance Ledger' were refundable loans, not advances for taxable ... Levy of service tax - advance received for provision of the service - reverse charge mechanism (RCM) on import of service - extended period of limitation - imposition of late fee and penalty. Service tax demand of Rs.2,22,51,053/- confirmed against the advance received - appellant submission is that the same were not ‘advances’ received for provision of any taxable service, but refundable loan amounts received from various parties including its director and relatives of the director - HELD THAT:- It is evident from the documents submitted by the appellant that the said amount has been recorded in the ‘Advance Ledger’ as refundable loan and not advances received against provision of any taxable service. Accordingly, the Ld. Adjudicating Authority has erred in holding such refundable advance as ‘advance towards provision of the service’ for confirming the said demand. Consequently, the demand of Service Tax confirmed set aside on this issue. Demand of Service Tax of Rs.16,44,878/- under Revers Charge Mechanism on import of service - HELD THAT:- It is observed that the whole exercise is revenue neutral. It is agreed with the submission made by the appellant that even if the appellant pays service tax on RCM amounting to Rs.16,44,878/- the same amount is available as CENVAT Credit on the very same day. Accordingly, there are merit in the argument of the appellant that it is a revenue neutral situation - It is further observed that the issue is settled in favour of the appellant by this Tribunal in the appellant’s own case [2024 (4) TMI 1334 - CESTAT KOLKATA] where it was held that 'we find that it is a revenue neutral situation. The Show Cause Notice in the present case has been issued to the appellant by invoking the extended period of limitation. However, we note that the extended period of limitation is not invokable in a case of revenue neutrality' - thus, demand of Service Tax of Rs.16,44,878/- confirmed under Reverse Charge Mechanism on import of service, in the impugned order, is not sustainable. Time Limitation - HELD THAT:- It is observed that the activity of the appellant was well within the knowledge of the Department and accordingly, the third SCN on the same issue cannot be issued by invoking the larger period of limitation, in terms of the judgement of the Hon’ble Supreme Court in the case of Nizam Sugar Factory Versus Collector of Central Excise, AP [2006 (4) TMI 127 - SUPREME COURT] wherein it has been held that the allegation of suppression and invocation of larger period cannot be sustained when the first and second show cause notices were issued on the same issue and all relevant fact were well within the knowledge of the authorities. Considering the above, it is held that the whole demand is barred by limitation and hence not sustainable. Accordingly, the demands confirmed in the impugned order set aside on the ground of limitation also. Penalty - HELD THAT:- As the demands of Service Tax against the appellant do not survive, there are no reason to sustain the demands of interest and imposition of penalties under Sections 77 and 78 of the Finance Act, 1994. Accordingly, the same are set aside. Imposition of late fee - HELD THAT:- In the instant case, it is observed that although the appellant has filed S.T.-3 Returns, they have filed the same belatedly. Accordingly, there are no reason to interfere with the imposition of Late Fee of Rs.21,700/- under Section 7(C) of the Act in the impugned order - the appellant has already paid an amount of Rs.7,900/- towards the Late Fee imposed, which has also been appropriated by the Ld. Adjudicating Authority in the impugned order. Thus, the appellant is liable to pay the remaining amount of Late Fee, as confirmed against them in the impugned order. Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether amounts recorded as 'advance' in books but supported by loan agreements, bank entries, interest payments and TDS are 'advances received towards provision of service' liable to service tax. 2. Whether service tax asserted under Reverse Charge Mechanism (RCM) on import of services is a revenue-neutral exercise when corresponding CENVAT credit is immediately available, and if so whether demands based on extended period of limitation are invokable. 3. Whether invocation of the extended period of limitation is sustainable where prior show-cause notices/orders on the same activity were issued and the facts were within departmental knowledge. 4. Consequential questions: sustainability of interest and penalties under Sections 77 and 78 of the Finance Act, 1994 where the primary demands are set aside; and validity of late fee under Section 7(C) where returns were filed belatedly. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Characterisation of amounts recorded as 'advance' but evidenced as loans Legal framework: Service tax liability can attach to advances received for provision of taxable services. Distinguishing between true advances for future taxable supplies and refundable loans requires examination of commercial reality and documentary evidence (books of account, loan agreements, interest payments, TDS, bank statements). Precedent treatment: The Tribunal examined the factual matrix and documentary record to determine whether entries labeled 'advance' in accounting are in substance loans rather than advances for taxable services. Interpretation and reasoning: The appellant produced CA certificate, year-wise loan statements, loan agreements, bank receipts/payments, evidence of interest payments and TDS deduction; the amounts were short-term, interest bearing (for third-party loans), and recorded as current liabilities. The Court treated these cumulative documentary indicators as determinative of commercial reality and found that the sums were refundable loans, not advances for provision of taxable service. Ratio vs. Obiter: Ratio - where comprehensive documentary proof establishes that amounts recorded as 'advance' are actually refundable loans (loan agreements, interest paid, TDS, bank flows), such amounts are not taxable as advances for service tax purposes. This conclusion was applied to set aside the demand confirmed on that basis. Conclusion: Demand of service tax confirmed on amounts characterized as 'advances' was set aside because records established they were refundable loans and not advances for provision of taxable services. Issue 2 - RCM on import of services, revenue neutrality and limitation Legal framework: Under RCM the recipient is liable to pay service tax on specified imported services, but entitlement to CENVAT credit for the same tax may make the transaction revenue neutral in effect. Limitation law prohibits invocation of extended period in cases where extended period cannot be validly invoked; Supreme Court precedent has held extended period is not invokable in revenue-neutral situations (as applied by the Tribunal). Precedent treatment: The Tribunal relied on its own earlier decision in the appellant's group case and applied the principle from higher authority (identified as applied in that earlier decision) that extended limitation cannot be invoked in revenue-neutral situations (reference to Jet Airways principle reproduced in the impugned reasoning). Interpretation and reasoning: The Tribunal accepted that payment of tax under RCM would be immediately offset by availment of CENVAT credit, producing a revenue-neutral outcome. It followed the approach that where the Department seeks to invoke extended limitation for a revenue-neutral assessment, the extended period is not invokable; hence the demand under RCM was barred by limitation and unsustainable. Ratio vs. Obiter: Ratio - where RCM liability is matched by immediate CENVAT credit such that net revenue effect is neutral, invocation of extended period of limitation is impermissible and demands based on such invocation are barred. Conclusion: The RCM demand was set aside as unsustainable because it involved a revenue-neutral liability and the extended period of limitation could not validly be invoked. Issue 3 - Invoking extended limitation when prior SCNs/orders existed on same activity Legal framework: Extended period of limitation (larger period) may be invoked where suppression of facts is established; however, where earlier show-cause notices/orders were issued on the same issue and facts were within departmental knowledge, invocation of extended limitation is inappropriate (as per Supreme Court jurisprudence cited). Precedent treatment: The Tribunal relied on the Supreme Court principle that the allegation of suppression and reliance on extended limitation cannot stand where prior SCNs/orders show the matter was within departmental knowledge (Nizam Sugar principle applied). Interpretation and reasoning: The record showed two prior SCNs and resulting orders addressing the appellant's activity; therefore the activity was within departmental knowledge and the subsequent SCN culminating in the impugned order could not rely on the larger period. The Tribunal treated this as a bar to extended limitation for the entire demand, including the RCM component (also addressed under Issue 2). Ratio vs. Obiter: Ratio - where the Department has earlier issued show-cause notices/orders on the same activity and all material facts were within its knowledge, the extended period of limitation cannot be invoked subsequently; demands raised relying on such extended period are time-barred. Conclusion: The entire demand (including amounts other than those already held to be loans) was held to be barred by limitation due to prior departmental action and knowledge; accordingly demands were set aside on limitation grounds. Issue 4 - Consequences for interest, penalties and late fee Legal framework: Interest and penalties under the Finance Act flow from sustained tax demands; late fee under statutory provision is distinct and may be sustained where returns were filed belatedly. Precedent treatment: The Tribunal examined whether ancillary consequences survive once primary demands are disallowed. Interpretation and reasoning: Because the substantive service tax demands do not survive (set aside on characterisation and/or limitation), interest and penalties under Sections 77 and 78 were set aside as unsustainable. However, the appellant had filed S.T.-3 returns belatedly; late fee under Section 7(C) was therefore properly imposed and partly paid - the balance remained payable. The Tribunal declined to interfere with the late fee imposition. Ratio vs. Obiter: Ratio - annulment of primary tax demand leads to annulment of interest and penalties premised on that demand; late fee for belated filing of returns is independently collectible and not vitiated by reversal of tax demands. Conclusion: Interest and penalties under Sections 77 and 78 were set aside; late fee under Section 7(C) was upheld (less amount already paid) and remains payable. Cross-references 1. Issue 2 and Issue 3 are interrelated: the Tribunal relied both on the revenue-neutral character of RCM liability (Issue 2) and on prior departmental knowledge/prior SCNs (Issue 3) to hold the RCM demand time-barred. 2. Issue 1 stands on documentary proof of commercial substance and was decided on factual foundation; consequential questions in Issue 4 flowed from the reversal of primary tax liabilities determined in Issues 1-3.