2021 (10) TMI 1469 - AT - Service Tax

Levy of service tax - Foreign sales representative salary and expenses and product promotion expenses through customers - The distributors not the agent of the respondent - Imported books and subscription - Reimbursement of product liability in USA - Revenue neutrality - time limitation. Levy of service tax - Foreign sales representative salary and expenses and product promotion expenses through customers - HELD THAT - It is found that the allegation in the department appeal regarding distributor working as an agent of the respondent is not found in show cause notice or in impugned order and no evidence to this effect has been put forth in appeal also. On contrary Commissioner has held that the distributors acted independently to determine the manner and ways of promoting. This finding of Commissioner establishes clearly that the distributors were not acting as the agents for the respondents - In the case of M/s Torrent Pharmaceuticals KPIT Cummins Infosystems Ltd 2014 (12) TMI 41 - CESTAT AHMEDABAD it was held that once local VAT GST is paid then the services are received in that country by the distributor. Therefore no tax is payable on reverse charge in India. The distributors not the agent of the respondent - HELD THAT - The reimbursement of foreign promotion expenses will not form part of the value of taxable service. The judgement of the Delhi High Court in the case of M/s. Intercontinental Consultants Technocrats Pvt. Ltd 2012 (12) TMI 150 - DELHI HIGH COURT has been affirmed by the Hon ble Supreme Court 2018 (3) TMI 357 - SUPREME COURT . Therefore the appeal on this ground fails. Imported books and subscription - HELD THAT - The Commissioner has in para 4.14(d) given findings to set aside the demand on the ground that the expenditure is incurred on purchase of books and subscription to various magazines which are considered as goods . Therefore as per the judgement of the Delhi High Court in the case of M/S GD Builders 2013 (11) TMI 1004 - DELHI HIGH COURT he has held that no service tax is payable on purchase of goods. Reimbursement of product liability in USA - HELD THAT - M/s Ranbaxy has attached supporting documents to the said invoice i.e. statement containing partywise invoice details of the invoice raised by the law/legal firm or advocates on the Ranbaxy i.e. LECLAIR RYAN ARMSTRONG TEASDALE LLP LABORDE NEUNER SUPERIOR DOCUMENT SERVICE. Revenue has confuse the name Superior Document Services which is the name of the legal firm and not the service per se. Thus Commissioner has correctly held that impugned service is for litigation cost and same will not be liable to service tax as the expenses incurred are in nature of reimbursable expenses. Revenue neutrality - time limitation - HELD THAT - Since there are no merits on the issues raised in this appeal and the appeal are dismissed on merits it is not required to discuss the issue of revenue neutrality and time bar raised in appeal. Appeal filed by the revenue is dismissed and the cross objections filed by the respondent is disposed off.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in this appeal are:

• Whether the reimbursement of foreign sales representatives' salary and expenses paid through distributors located outside India attracts service tax under reverse charge as Business Auxiliary Services under Section 65(105)(zzb) of the Finance Act, 1994 and Rule 3(iii) of the Taxation of Services (Provided from Outside India and Received in India) Rules, 2006.
• Whether the expenditure incurred on imported books, subscriptions, and CDs constitutes taxable service or is merely purchase of goods not liable to service tax.
• Whether product promotion expenses reimbursed through customers/distributors are liable to service tax under reverse charge.
• Whether reimbursement of product liability claim expenses incurred in USA and paid to Ranbaxy USA attracts service tax under reverse charge.
• Whether the demand raised by the revenue is barred by limitation under the extended period provisions.
• The applicability and impact of the principle of revenue neutrality in the context of service tax liability and credit availability.
• Whether certain other services mentioned in the grounds of appeal but not adjudicated upon in the original order can be subject matter of the appeal.

2. ISSUE-WISE DETAILED ANALYSIS

Foreign Sales Representative Salary and Expenses (Business Auxiliary Services)

Legal Framework and Precedents: Section 65(105)(zzb) defines Business Auxiliary Services. Rule 3(iii) of the Taxation of Services Rules, 2006, provides that taxable services provided from outside India and received in India shall be liable to service tax. The Tribunal referred to the judgment in Torrent Pharmaceuticals Ltd. (2014 CESTAT AHM) and Genome Biotech Pvt. Ltd. (2016 (42) STR 918 Tri-Mumbai), which held that services rendered outside India in relation to export goods after arrival at the destination country are not deemed to be received in India for taxation purposes.

Court's Interpretation and Reasoning: The Tribunal noted that the distributors appointed by the respondent in foreign countries independently appointed sales representatives for product promotion. The distributors controlled the manner and method of promotion, and the sales representatives promoted products belonging to the distributors, not directly to the respondent. The reimbursement of salary and expenses was held to be a discount or price adjustment rather than payment for taxable service received in India.

Key Evidence and Findings: The Commissioner found that the distributors acted independently without direction or control by the respondent. VAT was charged locally by service providers to distributors, indicating the services were consumed outside India. Debit notes and invoices substantiated the nature of payments as reimbursement and discount rather than service consideration.

Application of Law to Facts: Since the services were rendered outside India and consumed by foreign distributors who paid local VAT, the services were not received in India. Therefore, the provisions of reverse charge under Rule 3(iii) were not attracted.

Treatment of Competing Arguments: Revenue contended that distributors acted as agents and services fell under Business Auxiliary Services. However, no such allegation was in the show cause notice or original order, and no evidence was produced. Respondent's reliance on precedent judgments was accepted.

Conclusion: The demand for service tax on foreign sales representative salary and expenses was unsustainable and rightly dropped.

Imported Books, Subscriptions, and CDs

Legal Framework and Precedents: Service tax is leviable only on taxable services and not on goods. Section 67 defines value of taxable services. The Delhi High Court in G.D. Builders (2013 (32) STR 673) held that service tax cannot be charged on value of goods. The Supreme Court in Associated Cement Companies Ltd. held that data on CDs is a good and not a service.

Court's Interpretation and Reasoning: The Tribunal agreed with the Commissioner's finding that the expenditure was for purchase of goods (books, magazines, CDs) and not for any service. The invoices showed payments for purchase or subscription to magazines, which were goods. The contention that the demand included license value of CDs was rejected as a Customs Act issue, not a service tax issue.

Key Evidence and Findings: Invoices from Swets Information Services and others showed purchase of magazines for download, not online subscription or database retrieval service. Customs duty assessment records supported classification as goods with nil duty.

Application of Law to Facts: Since no service was rendered, and payments were for goods, service tax liability did not arise.

Treatment of Competing Arguments: Revenue argued suppression of license value for customs duty was relevant for service tax. Tribunal held that such issues are governed by Customs Act and do not create service tax liability.

Conclusion: Demand for service tax on imported books, subscriptions, and CDs was unsustainable and correctly dropped.

Product Promotion Expenses through Customers/Distributors

Legal Framework and Precedents: Reimbursement of expenses is not includible in value of taxable service under Section 67 and Rule 7(1) of Service Tax (Determination of Value) Rules, 2006. The Delhi High Court in Intercontinental Consultants & Technocrats Pvt. Ltd. (2013 (29) STR 9) held that reimbursement of expenses does not form part of taxable service value. The Supreme Court affirmed this principle in later judgments.

Court's Interpretation and Reasoning: The Tribunal upheld the Commissioner's finding that distributors incurred expenses locally and paid local VAT, indicating services were consumed outside India. The reimbursement by the respondent was not consideration for a taxable service received in India but a pass-through of expenses.

Key Evidence and Findings: Invoices and VAT payment evidence showed local taxation of services. The distributors independently controlled promotional activities.

Application of Law to Facts: Since services were received and consumed outside India and reimbursed expenses were not consideration for taxable service in India, no service tax was payable.

Treatment of Competing Arguments: Revenue argued these were taxable under reverse charge. Tribunal relied on precedent and factual findings to reject this.

Conclusion: Demand for service tax on product promotion expenses reimbursed through customers was unsustainable and rightly dropped.

Reimbursement of Product Liability Claim Expenses in USA

Legal Framework and Precedents: Service tax liability arises only if services are received in India. The Tribunal in Torrent Pharmaceuticals Ltd. held that services rendered and consumed outside India on which local GST/VAT is paid are not taxable under reverse charge in India.

Court's Interpretation and Reasoning: The Tribunal found that legal services were rendered in USA by law firms defending suits there. The invoices showed GST charged locally. The services were received and consumed outside India, and the reimbursement was for litigation expenses.

Key Evidence and Findings: Detailed invoices and supporting documents from legal firms proved the nature and location of services. The revenue's confusion regarding "Superior Documents Service" was clarified as a legal firm's name, not a service type.

Application of Law to Facts: Since services were outside India and local GST was paid, no service tax liability arose in India.

Treatment of Competing Arguments: Revenue contended the expenses were not purely litigation costs. Tribunal accepted respondent's evidence and rejected revenue's contention.

Conclusion: Demand for service tax on reimbursement of product liability claim expenses was unsustainable.

Time Bar and Limitation

Legal Framework and Precedents: The normal limitation period for service tax demand is 18 months from relevant date. The Supreme Court in Nizam Sugar Factory Ltd. held that once facts are disclosed in earlier show cause notices, subsequent demands invoking extended limitation period are barred.

Court's Interpretation and Reasoning: The Tribunal noted that the respondent had disclosed similar expenditures in an earlier show cause notice dated 22.10.2008, thus the department had knowledge of the facts. Therefore, the extended period of limitation could not be invoked for the period prior to March 2012.

Key Evidence and Findings: Earlier show cause notice and disclosures made by respondent supported the Tribunal's conclusion.

Application of Law to Facts: The demand for period prior to March 2012 was barred by limitation.

Treatment of Competing Arguments: Revenue's reliance on the Apex Court decision was found inapplicable as department had prior knowledge.

Conclusion: Demand for service tax for period prior to March 2012 was time barred.

Revenue Neutrality

Legal Framework and Precedents: Input services used in manufacture are eligible for Cenvat credit under Rule 2(1) of Cenvat Credit Rules. Various judgments including Coca-Cola India Pvt. Ltd. (SC), Indian Oil Corporation Ltd. (SC), and others have held that service tax paid on input services is revenue neutral for the manufacturer.

Court's Interpretation and Reasoning: The Tribunal observed that the respondent is a manufacturer paying excise duty and availing input credit on service tax paid on input services, making the demand revenue neutral.

Key Evidence and Findings: The respondent's status as manufacturer and credit availment records.

Application of Law to Facts: The service tax demand, if any, would be offset by credit, resulting in no loss to revenue.

Treatment of Competing Arguments: Revenue's argument against revenue neutrality was rejected based on binding precedents.

Conclusion: The demand was revenue neutral and did not cause loss to exchequer.

Other Services Mentioned in Grounds of Appeal

The Tribunal noted that certain services referred to in the grounds of appeal were not adjudicated upon in the original order and no demand was raised in the show cause notice. Accordingly, these could not be considered in the appeal.

3. SIGNIFICANT HOLDINGS

"The distributors not the agent of the respondent. The reimbursement of foreign promotion expenses will not form part of the value of taxable service."

"Services that are undeniably rendered by a foreign 'service provider' in relation to the goods sold abroad cannot be presumed to be covered by the legislative intent to tax."

"The services shall be received in India in order to levy service tax under reverse charge. If the services are provided to an establishment outside India and service provider is located outside India and charged local VAT/GST, it substantiate that the services are not received in India."

"Value of taxable service under section 67 only means value attributable to taxable service rendered. No service has been rendered but the amount have been paid for purchase of goods and therefore the same cannot be considered as value of taxable service."

"Reimbursement of expenses will not form part of value of taxable service."

"Subsequent show cause notice cannot be raised with extended period of limitation if facts were disclosed earlier."

"Service tax paid on input services used in manufacture is available as credit and the demand is revenue neutral."

"The provisions of Rule 5(1) of Service Tax (Determination of Value) Rules, 2006, which include reimbursable expenses in taxable value, are ultra vires Section 66 and 67 of the Finance Act, 1994 and were amended prospectively only from 14.05.2015."

"The charge of service tax under Section 66 has to be on the value of taxable service i.e. the value of service rendered by the assessee to the recipient, which can be brought to charge and nothing more."

"The demand under the head of 'Business Auxiliary Services' is set aside as the services are not received in India and reimbursement of expenses is not taxable."

Final determinations on each issue were in favour of the respondent, leading to dismissal of the revenue appeal and disposal of cross objections.