TaxTMI 
TaxTMI 
2023 (11) TMI 311
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....ious countries. In order to provide output services to its clients, the Appellant incurs expenditure for procuring various input services, inputs and capital goods from domestic as well as foreign vendors. The Appellant has made payments in foreign currency to various entities within and outside India which were recorded as business expenditure in its books of accounts. On the basis of CERA audit, after considering the foreign currency expenditure reported in the annual accounts and comparing the same with the service tax returns filed by the Appellant, the service tax authorities issued a show cause notice dated 20.04.2017 to the appellant for recovery of service tax demand of Rs. 10,55,33,679/- and applicable interest along with penalty alleging that the Appellant has short paid / not paid service tax on the payments made in foreign currencies for procuring various services such as: (a) Professional fee/engineering services ; (b) License fee/subscription ; (c) Corporate cost allocation ; (d) Repairs and maintenance ; (e) Consultancy fees ; (f) Bank charges ; (g) Other. 2. The impugned show cause notice alleged that the Appellant had short paid service tax on the va....
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....the Appellant to the seconded employees. III Bank Guarantee Commission Charges None of the Debit Notes or Invoices shows any payment of service tax on Bank Guarantee. The service tax paid by bank on commission charges for bank guarantee has no relation to the payments made by Appellant to M/S Linde AG. IV Software charges (goods) There was no documentary evidence in the form of an invoice or a bill of entry to support that it was goods and therefore the Appellant's plea is required to be rejected. V Repairs & Maintenance (Performance outside India) Appellant's contention that it was payment towards purchase of RSA stick is entirely unconvincing as no documentary evidence has been submitted by the Appellant. VI. Payment made to / for a. Government authorities. b. Purchase of protective clothing c. Purchase of Books/ Magazines d. School fee. e. Demurrage charges. f. Reimbursement of Salary plus other reimbursement g. Reimbursement of relocation charges of employees. h. Bank charges. i. Reimbursement of insurance charges j. Bank Guarantee Commission Charges h. Purchase of Label Dispenser Reason for rejection of the plea with respect to payment of t....
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.... consultancy fees, bank charges etc. for use in business and had short paid / not paid service tax on the same under reverse charge. Therefore, the appellant was put to a sufficient notice of the alleged irregularities in filing the ST-3 returns and if the appellant did not agree to the allegations, it was incumbent upon him to specifically contradict those allegations by reconciling the figures in books of account and the ST-3 returns. We do not find that there was any lack of clarity on the part of the department in determining the nature and impugned services in the show cause notice. The appellant was clearly pointed out the differences in books of accounts and ST-3 returns by way of following chart :- Expenses as per balance sheets 2011-12 2012-13 2013-14 2014-15 Total Professional fee/engineering services 279445434 25001148 236095730 128762043 669304355 License fee/subscri tion 93380512 89180567 163885362 216606011 563052452 Corporate cost allocation 73539299 97499449 54544196 43393881 268976825 Repairs and maintenance 814590 8707134 21082436 16592810 47196970 Consultancy fees 8622749 28146....
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....ces. Such services received by them are either in the nature of supervision services in relation to installation / repair of goods or in relation to immovable property. The services under consideration have been availed by them in order to execute its work / provide services to its client on their site located outside India. The professional fees / engineering services on which service tax is not paid are those services which are received by them outside India and are consumed outside India in connection with providing the export services. The Appellant submits that for receiving the aforementioned service, the Appellant was issued the invoice bearing no. B012209077 dated 12 December 2012 for EUR 13,42,000/- (INR 9,17,72,871) by M/s. Linde AG, Germany in the month of December 2012 against which payment was made by the Appellant on 26 December 2012.the Appellant submits that both the invoice date as well as the payment pertains to the period after 1st July 2012, therefore, the place of supply of the said services shall be determined as per PoPSR. Further, the Appellant has procured the inspection and expediating services in relation to the 'Ruwais' project executed outside I....
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....lub or campsite, by whatever, name called, grant of rights to use immovable property, services for carrying out or co-ordination of construction work, including architects or interior decorators, shall be the place where the immovable property is located or intended to be located. In the view of the above, the place of provision of the said services received by them is outside the taxable territory under both the above mentioned rule, i.e. Rule 4(a) and Rule 5 of PoPSR. That, even if for the sake of argument, it is assumed that Appellant is liable to discharge service tax in F.Y. 2011-12 considering the rule 7 of the POT Rules and rule 3(iii) of the Import of service rules as held in the impugned order on the ground that the such service has been received by a recipient located in India for use in relation to business or commerce, in this respect, the Appellant would like to place reliance on the judgment of Hon'ble Mumbai Tribunal in matter of Genom Biotech (P.) Limited. vs. Commissioner of Central Excise and Customs, Nashik ([2016] 71 taxmann.com 123 (Mumbai-CESTAT), wherein the Hon'ble Tribunal set aside the impugned order and held as follows: "15. Services that are not co....
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....ings in the impugned order that the appellant in defense reply has shown to have incurred an amount of Rs. 9,17,72,871.00 during the financial year 2011-12, towards engineering support services received for Ruwais project and they have claimed that the services have been consumed outside India and service tax shall not be attracted on such services for period from April 2011 to March 2012. But the invoice has been issued dated 12.12.2012 in relation to their project in Ruwais, for the services provided during the financial year 2011-12 to the appellant. That as per proviso in Rule 7 of Point of Taxation Rules, 2011 as existed prior to 01.04.2012 in case of "associated enterprises" where the person providing the service is located outside India, the point of taxation shall be the date of credit in the books of account of the person receiving the service or date of making the payment whichever is earlier." Accordingly, the taxability will be determined in the year 2011-12. Further, the impugned services will be covered as per the provisions of Rule 3(iii) of Taxation of Services (Provided from Outside India and received in India) Rules, 2006, the service tax liability in respect of "....
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.... find that the similar issue has already been decided by the Tribunal in the case of 2019 (20) G.S.T.L. 259 (Tri. - Mumbai) in the case of EMI Transmission Limited vs. Commissioner Of Central Excise, Nashik The relevant extract of the order is reproduced below :- "5. We have carefully considered the submissions made by both the sides. We find that the demand of Service Tax on the Technical Testing Analysis service was raised on the basis of Rule 3 of Taxation of Services (Provided from Outside India and Received in India) Rules, 2006, which reads as under : "3. Taxable services provided from outside India and received in India. - Subject to Section 66A of the Act, the taxable services provided from outside India and received in India shall, in relation to taxable services,- (i) specified in sub-clauses (d), (p), (q), (v), (zzq), (zzza), (zzzb), (zzzc), (zzzh), (zzzr), [(zzzy), (zzzz) and (zzzza)] 1 of clause (105) of Section 65 of the Act, be such services as are provided or to be provided in relation to an immovable property situated in India; (ii) specified in sub-clauses (a), (f), (h), (i), (j), (l), (m), (n), (o), (s), (t), (u), (w), (x), (y), (z), (zb), (zc), (zi), (....
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....ical Testing and Analysis service even though only performed outside India shall be liable to Service Tax as per Clause (iii) of Rule 3 of Rules, 2006, according to which, the only requirement is that service are received by a recipient located in India for use in relation to business or commerce. There is no dispute that technical testing and analysis service though wholly performed outside India but the same was received by the appellant in India which was indeed used in relation to business or commerce. Therefore after 1-4-2011, the service of technical testing and analysis is clearly chargeable to Service Tax." 4.2 In view of the above discussion, we hold that the professional fees/ Engineering charges which are considered under the expression "Consulting Engineering Services' were chargeable to service tax during the relevant period. B. Corporate cost allocation: The corporate cost allocation and other charges as reflected in the schedule of foreign currency expenditure indicate the salary expenses of employees of group companies from them some employees are deputed in the office of the Appellant. The service provided by employees of the Appellant (who are under employment ....
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....tes the said seconded employee by way of payment of salary and other benefits. In this regard, for the purpose of the administrative convenience of the seconded employees with regard to meeting of their requirements in their home country a portion of salary payable by the Appellant is disbursed by group companies to the designated overseas account of the seconded employees. The group companies initially pays the portion of the salary costs of the seconded employees to their designated overseas account and raise a debit note of said amount on the Appellant. The Appellant would reimburse the group companies for the exact actual amount paid by the group company, based on the debit notes from the group company on a periodic basis. The said debit notes raised by group companies represent the amounts paid by group companies on behalf of the Appellant, to each of the seconded employees towards salary and emoluments, for the work performed by the seconded employees in India under the control, supervision and as employee of the Appellant in India. The appellant has duly deducted tax at source on the entire amount of salary received by the seconded employees, paid in India as well in the hom....
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....nt prior to the planned end date in the event that the "Assignee" is not taking care of his obligations. He argued that this clause is to safeguard the Appellant, in case the employees who are seconded are not performing their obligation, the Appellants can ask the Company to terminate the agreement. This observation of learned Adjudicating authority has no relevance in determining whether the employees were seconded, or manpower services were provided. (iii) It has been held The salary of the "Assignee" is split into two, one Home Currency Element and another is Host Currency Element and approximately 80% of the salary is paid at home country and tax involved on the same is paid in home country, i.e. Germany, of the employee. The "Assignee" is paid nearly 20% of their salary in India and the income tax involved on this amount is only paid in India. Contradicting the same he argued that the Appellant has duly deducted tax at source on the entire amount of salary received by the seconded employees, paid in India as well in the home county. Same is also evident from the copy of Form 16 as issued by the Appellant to the said employees. (iv) It has been held that the "Appellant'....
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....ard, the Appellant has made detailed submissions vide Para E29 to E56 of the Appeal to substantiate non-applicability of Service tax on the said reimbursements along with additional submissions filed from time to time based on legal/ judicial developments. However, during the course of the personal hearing before the Hon'ble Tribunal on 12th January 2023, the department representative alleged the nature of services to be "Manpower Supply Services" and demanded payment of Service Tax under RCM relying upon the decision of the Hon ble Supreme Court in the matter of M/S Northern Operating Systems Pvt Ltd. (supra).Therefore, they are not liable for service tax on the corporate cost allocation expense amounting Rs. 27,10,12,363/- 4.5 Learned Counsel has argued that Appellant's group company does not hold any power in respect of the seconded employee during the secondment period; Group company is transferred into dormant status during the secondment period. On completion or termination of the secondment contract, the original employment contract will revive, and this secondment contract would expire; seconded employee is required to report to the concerned person of the Appellant; t....
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.... the planned end date, the "Company" will give 3 months notice (depending on an important reason due to the personal situation of the "Assignee" also a longer appropriate time limit will be applied but not longer than six months) of the impending repatriation to the "Assignee" iv. Clause 4 - Remuneration abroad. (a) Salary - The gross assignment base pay for assignment purposes will be Euro 109800 per annum. The net assignment pay has been calculated in accordance with the attached salary buildup schedule. It is quoted partly in the home country and party host country as follows: Home Currency Element: Euro 89130 net paid out in the home country. Host Currency Element: INR 13 18875 net paid out in the host country. (b) Payment delivery - The remuneration will be transferred into bank account to be designated by the "Assignee" in India and Germany. There will be no reimbursement of any costs relating to international cash transfer or exchange rate difference. (c) Home based benefits: Home base salary (shadow income) - Pensionable Earnings in Linde Supplementary pension system will for year 2010 be Euro 7800 gross per month. (d) Bonus- The bonus will be calculated on the basis....
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....ce to the home scheme. If possible, the "Company" will apply for the exemption from the host social security scheme. x. Clause 10 : Medical care abroad/Accident insurance for dependents. For the duration of Employee's residence in the foreign country, Linde will conclude an insurance policy covering medical care abroad with the Hallesche Insurcrs. During the assignment abroad the "Company" will take out an accident insurance for the "Assignee" and the "Company" will cover the premium costs. xi. Clause 11 - Taxation. The assignment salary is quoted net based on the Tax Equalization Policy of the Linde Group. The host company will meet any host tax and social security arising from assignment salary benefits. xii. Clause - 14 Final provisions. a. The "Assignee" shall inform the "Company" without undue delay of any changes in his personal details. The "Assignee" assure the "Company" that he can be contacted by post at the address provided and that he will notify the "Company" without undue delay and in writing of any changes in the address of service. b. German law is the proper law of this agreement On the basis of these clauses in the agreement Ld. AR has argued that a....
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....y power to terminate or revert such employees. And above all German law is the proper law of this agreement. That despite the fact that the re-imbursement is made by the appellant, they do not the controlling power over the seconded employees. all these facts conclusively prove that the employees working in M/S Linde Engineering India Pvt. Ltd are acting or providing service in India on behalf of their employer, i.e. M/S Linde, AG, Germany. 4.6 Therefore, the payments under the head of corporate cost allocation made by the appellant in foreign currency to M/S Linde, AG and their group companies situated outside India are against the taxable services, viz. Engineering services provided by the persons situated outside India. That Assignment Agreements, commercial invoices and debit notes clearly reveal that that all the seconded employees are professionally qualified as engineers and highly technically qualified persons and providing their service on behalf of Linde AG, Engineering Division or their group companies and providing the service in the nature of Consulting Engineer Service to M/s Linde Engineering India Pvt. Ltd., India as defined under Section 65 (31) Section 65(105)(g....
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.... obtained by M/s. LAG from a bank situated outside India. Since the bank guarantee is to be given for a project in India to appellant's customer in India, the foreign bank routes the guarantee through its Indian branch and obtains the guarantee from an India bank. The Indian bank issues the bank guarantee in favour of the Appellant on the basis of request given by the foreign bank. The Indian branch of the foreign bank forwards the advice of charges of the Indian bank issuing the guarantee as well as its own service charges to the requesting foreign branch. The foreign bank then forwards the bank guarantee advice to M/s. LAG including the charges levied by the Indian bank and the Indian branch of the foreign bank. It is to be noted that the charges levied by the Indian bank and the Indian branch of the foreign bank would have already suffered service tax. Such charges paid by the Appellant are reflected in the annual accounts as bank guarantee commission charges. He further stated that the bank guarantee commission charges, though paid by the Appellant to LAG in foreign currency have already suffered service tax once and cannot be made subject to service tax only due to the reason ....
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....ch services is contrary to facts and against the prevailing legal provisions of charging service tax on the services received by them from persons situated outside India; therefore, the appellant's submission that no service tax is leviable under reverse charge mechanism on such services is contrary to facts and against the prevailing legal provisions of charging service tax on the services received by them; that the payments made by the assessee are aptly covered under the import of services and the bank guarantee received by the appellant for its various projects in India was a service received by them and the charges paid for it have to be taxed in India; that the service tax paid by the banks is in no way connected to the present issue as the appellant is the recipient of a service from M/s Linde, AG and have paid for the same. 5.4 We find that the matter is finally settled by the Apex Court judgement in the case cited as 2023 (73) G.S.T.L. 4 (S.C.) COMMISSIONER OF CGST AND CENTRAL EXCISE Versus EDELWEISS FINANCIAL SERVICES LTD. where the Hon'ble court has held that issuance of corporate guarantee without consideration would not be a taxable service. There is no allegation in ....
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....ure incurred by them in foreign currency amounting to Rs. 1,30,167.00 under the head of bank charges as per the provisions of Section 66A read with Section 66 and 68 of the Finance Act, 1994 for the period prior to 1.7.2012 under Banking and other financial services and as per the provisions of Rule 2(d)(i(G) of the Service Tax Rules,1994 read with Section 66B and 68 of the Finance Act, 1994 for the period from 1.7.2012. 6.2 We find that the appellant has claimed that the impugned charges are bank commissions providing various services with respect to foreign remittances. Service tax is already charged by the banks and only dispute is that the appellant failed to substantiate that these amounts are against bank charges. We remand the case back to the adjudicating authority with the directions to the appellants to provide all supporting documents with respect to their contention. Thus, we remand back this issue to the Adjudicating Authority to re-adjudicate the matter after giving opportunity to the appellant to submit necessary documents and after hearing them. Subscription / License fees 7. Ld. Counsel has argued that in order to serve its clients and perform its duties in an e....
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....on technology software for commercial exploitation including right to reproduce, distribute and sell information technology software and right to use software components for the creation of and inclusion in other information technology software products, acquiring the right to (vi) use information technology software supplied electronically." 7.1 In respect of taxability on Software services received from 1.7.2012, the relevant provisions as under: i. Further, as per the provisions of 66B, there shall be levied at the specified rate on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may specified. ii. Section 65B (44) of the Finance Act, 1994 defines the term Service, mean any activity carried out by a person for another for consideration and includes a 'declared service' Further, clause (d) of section 66E (declared services) of the Finance Act, 1994, declares the following activity as a service, "development, design, programming, customization, adaptation, up gradation, enhancement, implementation of information t....
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....chanism. 8.2 We are of the considered opinion that under the service tax law all payments received or paid to the foreign parties by the assessees against any service provided/ received from abroad (i.e other than goods, immovable property or money/actionable claims) are subject to tax unless those are brought under specific exception. Once a discrepancy has been brought to the notice of the assessee for a particular amount, onus lies upon him to prove that the amount was not taxable. Having failed to prove that the amount received in foreign currency was not subject to tax liability, we uphold the demand of service tax in this regard. (F). OTHERS 9. The Appellant submits that the payments made under the head 'others' are in relation to various types of expenses such as: Particulars Amount (in Rs.) Total amount of expense falling under Others category 16499808 Particulars Amount (in Rs.) Payment of tax to government authorities 6412905 Purchase of protective clothing 37564 Purchase of books and magazines 94570 Reimbursement of insurance charges 1071014 Reimbursement of relocation charges of employees 663426 School fees for the children of the employ....
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....e employee by himself/herself. If the tax on income earned by the employee is paid by the Appellant, then it has to be included to his income or the payments of the services provided by them. 9.3 We find that in the impugned order it has been discussed that in order to ascertain the correctness of their submission, the adjudicating authority has gone through the list as per the Annexure-G and assessment orders submitted along with their defense reply. On going through list, it has been mentioned the name of persons, amount paid, legal position, remarks, etc. In remarks column of the Annexure-G, it has been shown as salary. That, all the so called assessment orders submitted by the appellant are in German language and he is not proficient in German language. Therefore, he could not analyse the contents of the assessment orders submitted by the appellant. 9.4 We find that the adjudicating authority his merely proceeded on assumption and presumption to the taxability and nature of taxes paid by the appellant to the governments abroad without ascertaining the actual contents of the assessment orders. Merely for the reason that the assessments orders were in German, the adjudicating a....
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.... adjudication order But a Debit Note No. 8026180 dated 05.11.2013 was issued by SELAS -Linde GMBH to M/s Linde Engineering India Pvt. Ltd , wherein they have charged 38029.50 Euro towards "Engineering Services for LEI by Mr. Arnold Ulsperger from 06/2013 until 10/2013 and 11160.14 EURO towards Travel costs for Mr. Amold Ulsperger and 440.83 Euro towards Protective Clothing. From the debit note no. 8026180 dated 05.11.2013, it is clear that the amount of 440.83 (INR 37,464.00) is charged in the bill along with the charges for Engineering Services provided to LEI by Mr. Arnold Ulsperger from 06/2013 until 10/2013. Therefore, the amount of Rs. 37,464.00 charged by SELAS -Linde GMBH liable to be included in the assessable value of taxable service, viz. Engineering Services received by them from Mr. Arnold Ulsperger. Further, as per the provisions of Section 67 of the Finance Act, 1994, where service tax is chargeable on any taxable service with reference to its value, then such value shall be the gross amount charged by the service provider for such service provided or to be provided by them. Therefore, the payments made by them under the heading of purchase of protective clothing (und....
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....ieval service' ('OIDAR services); that for the period April 2011 to June 2012, the Appellant relies on the judgment of ROYAL WESTERN INDIA TURF CLUB LTD. VS COMMR. OF S.T., MUMBAI [2015 (38) S.T.R. 811 (TRI. - MUMBAI)-wherein it has been held that as an essential for service tax to be levied, the service has to be classified under proper category of service, without such classification, charge of service tax does not apply; in the present case, the impugned order has not specified the category of service in which the impugned differential amount shall be chargeable to service tax. Hence, the demand of service tax for the period April 2011 10 June 2012 is liable to be set aside; that whether the services qualify as import of services as per the Import of service rules, the impugned order is absolutely silent on the conditions that are to be satisfied for import of service under the said rules that it is settled law that if the impugned order does not spell out the basis of allegation then the same is liable to be set aside. He further argued that For the period subsequent to July 2012, determination of place of provision of the any services has become relevant in order to de....
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....not been made by the Appellant for availing any services; that such payments have been made pursuant to the employment contract between the employees of the Appellant and the Appellant. The said payments have been made purely under employer employee relationship. Hence, the question of levy of service tax does not arise. (b) REIMBURSEMENT OF RELOCATION CHARGES OF EMPLOYEES 12.1 The Ld. Counsel has argued that the employees of group companies of the Appellant come on secondment and work in India; that since the employees relocate themselves from a country other than India to India pursuant to the contract of employment with the Appellant. The said employees incurred a certain amount of expenses while settling in India which the Appellant reimburses such expenses incurred by the said employees while relocating to India, these payments have not been made by the Appellant for availing any services that such payments have been made pursuant to the employment contract between the employees of the Appellant and the Appellant. (c) SCHOOL FEES 12.2 The Learned Counsel has argued that the head 'Others' in the financials of the Appellant also include school fees paid for the chil....
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....LARY PLUS OTHER REIMBURSEMENT" were incurred by them in corporate cost allocation and that the said expenses were made by them towards the taxable services, viz. Consultancy Services received by them from the persons situated outside India and they are liable for payment of service tax under reverse charge mechanism; that all the payments made by them in relation to the Engineering Consulting Services received by them are liable for payment of service tax. They were taxable under the heading corporate cost allocation towards the taxable services of "Consulting Engineering Services" 12.5 We have already discussed under the heading "Corporate Cost allocations" that the relationship between the seconded employees and the appellant was not covered under the exclusion clause contained in the definition of 'Service' under Section 65B(44)(b) of the Finance Act, 1994 as the employee-employer relationship. Accordingly. We uphold the that the REIMBURSEMENT OF INSURANCE CHRGES , REIMBURSEMENT OF RELOCATION CHARGES OF EMPLOYEES, SCHOOL FEES and REIMBURSEMENT OF SALARY PLUS OTHER REIMBURSEMENT as discussed above were chargeable to service tax. Demurrage charges 13. The Ld Counsel has....
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.... a discrepancy has been brought to the notice of the appellant for a particular amount, onus lies upon him to prove that the amount was not taxable. Having failed to prove that the amount paid in foreign currency was not subject to tax liability, we are of the view that service tax is leviable after 01.07.2012 on such payments. Purchase of Dispenser - Rs. 29689/- 14. The Learned Counsel has argued that under the head 'Others' in the financials of the Appellant also include payment made for purchase of i.e., label Dispenser i.e. purchase of goods and not liable to service tax which are not leviable to service tax; that the Appellant has enclosed the listing of the sample invoices along with corresponding copy of the invoices for reference. 14.1 Learned AR has argued that they did not provide any documentary or material evidence in support of their claim during the course of adjudication, hence their plea cannot be accepted. 14.2 We are of the considered opinion that the matter needs to be remanded to the adjudicating authority to pass a fresh order after examining the invoices. Conference and meeting - Rs. 1,78,005/- Sundry expenses: 10,96,353/- and Unreconcilable expen....