2025 (5) TMI 646 - AT - Service Tax

Levy of service tax - 2% additional amount charged over actual electricity expenses reimbursed by the appellant to its tenant - HELD THAT - The Honourable Supreme Court in UOI vs Intercontinental Consultants and Technocrats Pvt. Ltd. 2018 (3) TMI 357 - SUPREME COURT affirmed the decision of the Delhi High Court in Intercontinental Consultants Technocrats Pvt Ltd v UOI 2012 (12) TMI 150 - DELHI HIGH COURT wherein Rule 5(1) of the Service Tax Valuation Rules 2006 which provided for inclusion of expenditures or costs incurred by the service provider in the course of providing taxable services in the value of such taxable services was stuck down as ultra vires Section 66 and Section 67 of the Act and as travelling beyond the scope of the said sections. As such with the very statutory edifice for raising the demand having been demolished the findings in the impugned OIA are wholly untenable thereby rendering the OIA unsustainable. Conclusion - Electricity is goods chargeable to duty under Central Excise Tariff as well as under the State Value Added Tax Act electricity therefore would amount to sale of goods and not supply of service . Appeal allowed.

Summary

The primary legal questions considered in this appeal revolve around the applicability of service tax on the 2% additional amount charged over actual electricity expenses reimbursed by the appellant to its tenant, specifically:

1. Whether the 2% financing and service charge collected over and above the electricity charges reimbursed by the appellant from its tenant constitutes part of the taxable value of the maintenance service under Section 67 of the Finance Act, 1994 and Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006.

2. Whether Rule 5(1) of the Service Tax Valuation Rules, 2006, which mandates inclusion of expenditures or costs incurred by the service provider in the taxable value, is valid and can be relied upon for demand of service tax.

3. Whether electricity charges reimbursed by the appellant to the tenant can be treated as a supply of service liable to service tax or as a sale of goods exempt from service tax.

4. The correctness of the demand of service tax, interest, and penalty under Section 76 of the Finance Act, 1994 imposed on the appellant for the period December 2009 to June 2010.

Issue-wise Detailed Analysis

Issue 1: Inclusion of 2% additional charges in taxable value under Section 67 and Rule 5(1)

The relevant legal framework includes Section 67 of the Finance Act, 1994, which defines the valuation of taxable services, and Rule 5(1) of the Service Tax (Determination of Value) Rules, 2006, which required inclusion of all expenditures or costs incurred by the service provider in the value of taxable services. The Department relied on these provisions to include the 2% extra charged over electricity reimbursement in the taxable value.

The appellate authority upheld the demand based on Rule 5(1), treating the 2% charge as part of the service value. However, the appellant challenged the validity of Rule 5(1), citing judicial pronouncements.

The Court referred to the landmark decision of the Supreme Court in Union of India vs Intercontinental Consultants and Technocrats Pvt. Ltd., which affirmed the Delhi High Court's ruling that Rule 5(1) was ultra vires Sections 66 and 67 of the Finance Act, 1994. The rule was held to exceed the statutory mandate by mandating inclusion of costs and expenditures beyond the scope of the Act's valuation provisions.

Thus, the statutory foundation for including the 2% charge in the taxable value was demolished. Consequently, the impugned order relying on Rule 5(1) was found unsustainable.

Issue 2: Validity of Rule 5(1) of the Service Tax Valuation Rules

The Court's reasoning centered on the constitutional and statutory limits of delegated legislation. Rule 5(1) attempted to broaden the taxable value by including all costs and expenditures incurred by the service provider, which the Supreme Court held was beyond the scope of Sections 66 and 67.

The Supreme Court's judgment was binding and authoritative, rendering Rule 5(1) invalid for valuation purposes. The Court therefore rejected the Department's reliance on this rule to justify the service tax demand.

Issue 3: Nature of electricity charges reimbursed - service or sale of goods

The appellant contended that the electricity charges reimbursed, including the 2% additional amount, did not constitute a taxable service but rather a reimbursement of goods supplied (electricity), which is outside the service tax net.

The Tribunal referred to its own prior decision in the appellant's case (Final Order No.42639/2018) and to the Mumbai Bench's ruling in M/s. ICC Reality (India) Pvt. Ltd., which held that electricity supplied by the State Electricity Board is a 'sale of goods' under Tariff Heading 27 of the Central Excise Tariff Act and is exempt from service tax under Notification No. 12/2003-ST.

Electricity being goods and not a service, the reimbursement of electricity charges could not be treated as a taxable service. The 2% additional charge was also considered part of this reimbursement and thus not liable to service tax.

Issue 4: Legitimacy of demand of service tax, interest, and penalty

Since the foundational valuation rule (Rule 5(1)) was struck down and the electricity charges reimbursement was held not to be a taxable service, the demand of service tax, interest, and penalty under Section 76 lacked merit.

The Court found that the impugned orders confirming the demand were unsustainable and liable to be set aside, granting relief to the appellant.

Significant Holdings

The Court held: "Rule 5(1) of the Service Tax Valuation Rules, 2006 which provided for inclusion of expenditures or costs incurred by the service provider in the course of providing taxable services, in the value of such taxable services, was struck down as ultra vires Section 66 and Section 67 of the Act and as travelling beyond the scope of the said sections."

Further, the Tribunal reiterated its earlier ruling: "The electricity charges paid by the appellant - assessee on behalf of its tenants could only tantamount to 'service' which cannot be brought under the purview of service tax... electricity is goods chargeable to duty under Central Excise Tariff as well as under the State Value Added Tax Act... electricity therefore would amount to 'sale of goods' and not 'supply of service'."

Accordingly, the Court concluded that the impugned order in appeal was "not sustainable" and "liable to be set aside." The appeal was allowed with consequential relief.