2010 (12) TMI 824 - HC - Service Tax

Service tax liability - collection of service tax liability of insurance premium from the policy holder - it is evident that once there is proposal and acceptance a valid contract has been created - Evidently the first step is the proposal for insurance and the parties have agreed the terms and when the second respondent tendered the first premium he has fulfilled his part of the contract and on acceptance the terms have become absolute and unqualified - Evidently at that point of time the petitioner had not put any additional conditions for payment of any extra amount above Rs. 4, 810/- to meet the service tax element. It is evident therefore that there had been consensus arrived at on the terms of the policy as found in Ext.P7 award to include every items within the Premium Amount of Rs. 4810/-. The Ombudsman was of the view that the premium was fixed as inclusive of tax and all the expenses. From the circumstances pointed out above it cannot be said that the view taken therein is wrong. - Decided in favor of policy holder.

Summary

Issues Involved
1. Legality of the Insurance Ombudsman's order.
2. Inclusion of service tax in the premium amount.
3. Unilateral variation of contract terms by the insurer.
4. Applicability of the Finance Act provisions.
5. Principles of insurance law and contract interpretation.

Detailed Analysis

1. Legality of the Insurance Ombudsman's Order
The petitioner, an insurance company, challenged the order passed by the Insurance Ombudsman. The Ombudsman's award (Ext.P7) was contested on the grounds that it incorrectly determined the inclusion of service tax in the premium amount and misinterpreted the terms of the insurance contract.

2. Inclusion of Service Tax in the Premium Amount
The policy in question commenced on 30-6-2006 with an annual premium of Rs. 4,810/-. The dispute arose when the insurer demanded an additional Rs. 495.43 as service tax in 2009, which the respondent objected to. The Ombudsman held that the agreed premium of Rs. 4,810/- included all taxes and expenses, implying that the service tax was already accounted for within this amount. The Ombudsman relied on Section 67(2) and (3) of the Finance Act, which state that the gross amount charged includes service tax, thus supporting the respondent's claim that the premium was inclusive of service tax.

3. Unilateral Variation of Contract Terms by the Insurer
The petitioner argued that the service tax should be passed on to the consumer based on a policy decision taken in 2009. However, the court found that the terms of the policy, as agreed upon in 2006, did not include any provision for additional service tax beyond the fixed premium of Rs. 4,810/-. The court emphasized that the terms of the contract cannot be varied unilaterally by the insurer, especially when the respondent was led to believe that the premium included all taxes.

4. Applicability of the Finance Act Provisions
The petitioner cited the Finance Act and the decision in All India Federation of Tax Practitioners v. Union of India to argue that service tax is a consumption tax that should be borne by the consumer. However, the court noted that the policy document did not explicitly state that service tax would be charged separately. Therefore, the court concluded that the insurer could not retrospectively impose this tax on the respondent.

5. Principles of Insurance Law and Contract Interpretation
The court referred to the principles of insurance law, emphasizing that a contract of insurance is based on mutual agreement and utmost good faith. It cited the decision in General Assurance Society Ltd. v. Chandmull Jain, which states that the terms of an insurance contract, including the premium, must be clear and unambiguous. The court also highlighted that any ambiguity in the contract should be interpreted against the insurer. The court found that the premium amount of Rs. 4,810/- was agreed upon as inclusive of all charges, including service tax, and thus could not be unilaterally altered by the insurer.

Conclusion
The court dismissed the writ petition, upholding the Ombudsman's award. It ruled that the premium amount of Rs. 4,810/- was inclusive of service tax and that the insurer could not unilaterally impose additional charges. The court also ordered that any extra amount collected from the respondent should be adjusted towards future premiums. The court expressed appreciation for the assistance provided by the Amicus Curiae.