2025 (5) TMI 1823 - AT - Service Tax

Taxability of service - receipt of reimbursements for brand promotion of INTEL and MICROSOFT - Demand of tax under Business Auxiliary Service - benefit of Notification No. 21/2003-ST - extended period of limitation - levy of penalty - HELD THAT - Learned Counsel submits that the payments received from Intel are merely in the nature of reimbursement. The reimbursement flows out of a cost sharing agreement simpliciter and not an agreement for provision of service. Thus service provider-service recipient relationship does not exist and there is no consideration for such service. Learned Counsel also draws attention to the contract entered by the appellant and submits that on a plain reading of the above it is evident that it is not a contract that can be considered as falling under Business Auxiliary Service. Learned Counsel further submits that Section 65 (105)(zzb) only covers promotion of goods/services. Brand promotion is a distinct service that was introduced in the tax net vide insertion of the Section 65 (105)(zzzzq) only with effect from 01.07.2010. The proceedings against the appellant was initiated and the issue is settled as per the decision in the matter of M/s. Datamini Technologies (India) Ltd. Vs Commr. of C. Ex.. 2016 (12) TMI 1535 - CESTAT MUMBAI wherein it is held that brand promotion is not covered within the ambit of business auxiliary service . Learned Counsel further summits that even if it is construed to have rendered service to M/s. Intel the same should be construed as an export in terms of Rule 3 of Export of Service Rules 2005. Thus the demand is unsustainable on this ground also. Learned Counsel also draws our attention to the relevant notifications including Notification No. 21/2003-ST. dated 20.11.2003 Notification No. 09/2005-ST. dated 03.03.03.2005 Notification No. 28/2005-ST. dated 07.06.2006 and Notification No. 13/2006-ST. dated 19.04.2006 Thus we find that the issue is squarely covered by the above decision of the Tribunal in the matter of M/s. Datamini Technologies (supra) and we do not have any reason for differ hence the impugned order is unsustainable and is set aside. Accordingly the appeal is allowed with consequential relief if any in accordance with law.

Summary

The core legal question considered in this appeal is whether the demand of service tax under the category of 'Business Auxiliary Service' on reimbursements received by the appellant, purportedly for 'brand promotion' of Intel products, is sustainable.

Central to the dispute is whether the appellant's receipt of reimbursements from Intel Semiconductor Ltd. under a 'Cost-sharing Arrangement' constitutes a taxable service of 'brand promotion' under the Finance Act, 1994, specifically under Section 65(105)(zzb) relating to Business Auxiliary Services. The appellant contends that these payments are mere reimbursements and do not amount to provision of any taxable service. The Tribunal also considered whether 'brand promotion' was covered under the definition of 'Business Auxiliary Service' during the relevant period, and whether the service, if any, should be treated as an export of service, thereby exempting it from service tax.

Another issue addressed was the validity of invoking extended limitation under Section 73(1) of the Finance Act, 1994, and imposition of penalty, given the nature of the dispute being one of statutory interpretation.

Regarding the first issue, the relevant legal framework includes Section 65(105)(zzb) of the Finance Act, 1994, which defines 'Business Auxiliary Service' as any service in relation to promotion, marketing, or sale of goods or services produced or provided by or belonging to the client. The definition requires that the goods or services promoted or marketed must belong to the client receiving the service. The concept of 'brand promotion' as a distinct taxable service was introduced only later, by insertion of Section 65(105)(zzzzq) effective from 01.07.2010.

The appellant relied heavily on precedents including the Tribunal's decision in the matter of M/s. Datamini Technologies (India) Ltd. and Zenith Computer Limited, which held that 'brand promotion' is not subsumed within 'Business Auxiliary Service' prior to the 2010 amendment. The appellant also cited the Tribunal decisions in M/s. Jetlite (India) Ltd., Sun Microsystems, and Arcelor Mittal Stainless, which supported the position that mere reimbursement under cost-sharing arrangements does not constitute a taxable service.

The Tribunal's reasoning, following the detailed analysis in Datamini Technologies, emphasized that the key element in 'Business Auxiliary Service' is that the goods or services promoted must be produced or provided by or belong to the client. Here, the appellant purchased Intel and Microsoft products which were incorporated into its own products. The reimbursements from Intel were linked to the appellant's procurement volumes rather than any enhancement in Intel's customer base. Thus, the appellant was not providing a service in relation to goods belonging to Intel or Microsoft, but rather receiving reimbursements under a cost-sharing scheme.

The Tribunal noted that the appellant's products, embedded with Intel and Microsoft components, benefited from the association, but this did not translate into the appellant rendering a promotional service to Intel. The relationship was essentially reversed from what the show cause notice alleged, and the reimbursements were not consideration for any service rendered by the appellant to Intel. This interpretation was consistent with the statutory definition and the intention behind the service tax provisions.

The appellant's argument that even if a service was rendered, it should be treated as export of service under Rule 3 of the Export of Service Rules, 2005, was also noted, although the Tribunal's primary finding was that no taxable service was rendered at all.

Regarding the extended period of limitation and penalty, the appellant argued these were unsustainable as the dispute involved interpretation of statutory provisions and was settled by authoritative decisions. The Tribunal agreed that since the issue was one of legal interpretation and the appellant had relied on settled precedents, the imposition of penalty and extended limitation was not justified.

The Revenue's representative relied on the impugned order and contended that the appellant was liable for service tax. However, the Tribunal distinguished the facts from the cited Jetlite case, noting that the latter involved display of logos and promotion of immovable properties, which fell outside the scope of Business Auxiliary Services during the relevant period. The Tribunal reiterated that the mere display of logos or brand promotion, without the goods belonging to the client or a service recipient-provider relationship, does not attract service tax under the Business Auxiliary Service category.

In conclusion, the Tribunal held that the demand of service tax on reimbursements received by the appellant under the cost-sharing arrangement with Intel was not sustainable. The reimbursements did not amount to payment for a taxable service under 'Business Auxiliary Service' as defined in the Finance Act, 1994. The Tribunal set aside the impugned order confirming the demand and allowed the appeal with consequential relief.

Significant holdings include the Tribunal's affirmation that:

"A key element in the definition of 'business auxiliary service' are the goods in relation to which service is rendered. The goods are to be produced or provided by or belonging to the client. There is no dispute that the goods supplied by M/s. Intel Corporation and M/s. Microsoft Corporation are bought by appellants thus ruling out an allegation that service is rendered by appellants in relation to these goods."

Further, the Tribunal emphasized:

"Such a reversal of roles would alter the relationship in a manner that was not contemplated in the show cause notice. That the reimbursements are circumscribed by funds added in proportion to the procurements effected by the appellants from the two suppliers and not from enhanced sales attributed to the alleged promotion of product would reinforce the conclusion that the objective of the schemes is not the enhancement of the customer-base of M/s. Intel Corporation and M/s. Microsoft Corporation and, thus, not in consonance with the definition of taxable activity in Section 65(19)(i) of Finance Act, 1994."

Accordingly, the Tribunal concluded that the appellant did not render any taxable service under Business Auxiliary Service during the relevant period and the service tax demand was unsustainable.