2010 (11) TMI 232 - AT - Service Tax

Refund of interest - Delay in paymenent of service tax - Provision for demanding service tax in respect of transactions between associated enterprises immediately upon amendment has been introduced only w.e.f. 10-5-08. Prior to 10-5-08 neither the Finance Act 1994 nor the Service Tax Rules 1994 contain any provision enabling demand of service tax prior to the realization of taxable services in any circumstances -Notification No. 19/08 introducing Explanation to Rule 6 of the Service Tax Rules 1994 contains a provision that it shall be effective only from the date of its publication - The amendment to Section 67 is a substantive one and will be applicable only from the date of its introduction and not retrospectively eventhough the Explanation uses the expression for removal of doubt - The decision of the Tribunal in CCE Pune v. Bajaj Auto Ltd.relied upon by the lower appellate authority to conclude that the amendment which is clarificatory in nature is retrospective is not applicable in the facts of the present case as the Tribunal held in that case that clarificatory amendments are retrospective only when they did not materially change the existing provisions - In the instant case there was no provision either in Section 67 of the Finance Act or Rule 6 of the Service Tax Rules to suggest that in the case of transactions between associated enterprises service tax has to be paid immediately on entry of the transaction in the books of account - Agree with the contention of the assessees that there was no delay in payment of service tax and that therefore they were entitled to refund of interest of Rs. 6, 21, 918/- set aside the impugned order and allow the appeal.

Summary

Issues:
1. Calculation of interest on delayed payment of service tax on associated enterprise transactions.
2. Interpretation of the statutory provision for demanding service tax in transactions between associated enterprises.
3. Applicability of the Explanation inserted in Rule 6 of the Service Tax Rules, 1994, w.e.f. 10-5-08.

Analysis:
1. The appellants remitted service tax on associated enterprise transactions based on raising service invoices post the introduction of Finance Bill 2008. They remitted service tax on Leased Circuit Services provided to an associated enterprise, M/s. Sify Communications Ltd., but miscalculated the interest on delayed payments. The department contended that the due dates for payment of service tax were missed, resulting in excess interest paid. The dispute arose from the calculation methodology and the actual due dates for payment, leading to a claim for a refund of interest. The issue centered around the correct calculation of interest on delayed service tax payments.

2. The amendment in the Finance Act, 2008 introduced changes in the payment of service tax for transactions between associated enterprises. The objective was to prevent tax avoidance by mandating service tax payment upon entry in the books of account, irrespective of actual realization of payment. The amendment aimed to address the practice of deferring service tax payment based on actual receipt of payment, especially in transactions between associated enterprises. The clarification emphasized the importance of timely service tax payment based on book entries, aligning with the anti-avoidance measures. The legislative intent behind the amendment was to ensure immediate service tax payment for transactions with associated enterprises, as detailed in the Finance Act and Service Tax Rules.

3. The statutory provision for demanding service tax in transactions between associated enterprises was introduced w.e.f. 10-5-08. The retrospective application of the Explanation inserted in Rule 6 of the Service Tax Rules, 1994 was debated, with the Tribunal emphasizing that the legislative intention was to introduce a new provision, not to clarify existing rules retrospectively. Precedents highlighted that explanations restricting taxpayers should not have retrospective effect unless explicitly stated. The Tribunal's decision underscored the need for clarity in legislative amendments and the applicability of such changes from the date of introduction. The judgment emphasized the importance of legislative intent and the non-retrospective application of clarificatory amendments.

In conclusion, the judgment addressed the calculation of interest on delayed service tax payments, the statutory provisions for service tax in transactions with associated enterprises, and the applicability of legislative amendments. The decision favored the appellants, allowing their appeal for a refund of interest based on the correct interpretation of the law and the legislative intent behind the relevant provisions.