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2025 (7) TMI 343 - AT - Service TaxReversal of CENVAT Credit - investment and disinvestment in Mutual Funds - trading of goods - providing of taxable as well as exempt services - non-maintenance of separate records - HELD THAT - It is very clear from the decisions of this Tribunal in M/S SIEGWERK INDIA PVT. LTD. VERSUS COMMISSIONER CENTRAL GOODS SERVICE TAX COMMISSIONERATE 2024 (10) TMI 220 - CESTAT NEW DELHI that the activity undertaken by the appellant does not amount to service under Section 65B(44) of Finance Act 1994 and therefore is not exempted service under Rule 2(e) of Cenvat Credit Rules and therefore there is no question of payment of amount required under sub-rule (3) of Rule 6 of Cenvat Credit Rules since it has been repeatedly established that investment and disinvestment from Mutual Fund is not trading of goods. The impugned order is set aside - appeal allowed.
The core legal questions considered by the Tribunal are as follows:
1. Whether the appellant's activity of investing surplus funds in Mutual Funds by subscribing and redeeming units amounts to "trading of goods" or "trading of securities" under the relevant tax laws and whether such activity constitutes an exempted service under the Finance Act, 1994. 2. Whether the appellant, by engaging in the above activity along with taxable services (such as transportation of goods through pipelines), is liable to pay an amount under sub-rule (3) of Rule 6 of the Cenvat Credit Rules, 2004 due to non-maintenance of separate accounts for input services used in taxable and exempted services. 3. Whether the demand and penalty imposed by the original authority on the appellant for alleged non-payment under the said provisions are sustainable in law. Issue-wise Detailed Analysis: Issue 1: Whether investment in Mutual Funds amounts to trading of goods/securities and constitutes an exempted service Relevant legal framework and precedents: The definition of "goods" under Section 2(7) of the Sales of Goods Act, 1930 and Section 65B(25) of the Finance Act, 1994 includes securities. Section 2(h) of the Securities Contracts (Regulation) Act, 1956 defines units issued by Mutual Funds as securities. Trading of goods is an exempted service under Section 66D of the Finance Act, 1994. Rule 2(e) of the Cenvat Credit Rules, 2004 defines exempted service. Section 65B(44) of the Finance Act, 1994 defines "service" as an activity carried out by a person for another for consideration but excludes transfer of title in goods by way of sale. Precedents relied upon include multiple decisions of this Tribunal, notably:
Court's interpretation and reasoning: The Tribunal noted that trading involves buying and selling between a seller and a purchaser with a transfer of title. In the case of Mutual Funds, the appellant subscribes units from and redeems units to the AMC managing the Fund. There is no sale or purchase of units between third parties, and the units are not transferable to others. Therefore, the activity lacks the essential characteristics of trading. The Tribunal further observed that the activity of investment in Mutual Funds does not constitute a "service" as defined under Section 65B(44) because the appellant is not providing any activity for another for consideration but is merely investing its own funds. The transfer of units by way of redemption is a transfer of title but not a service. Hence, the activity cannot be considered an exempted service under Rule 2(e) of the Cenvat Credit Rules. Key evidence and findings: The appellant's submissions detailed that Mutual Fund units are subscribed and redeemed only through the AMC, with no secondary market trading. The Revenue's show cause notice relied on definitions of goods and securities but failed to establish that the appellant engaged in trading with third parties or provided any service in relation to such trading. Application of law to facts: Applying the legal definitions and precedents, the Tribunal concluded that the appellant's Mutual Fund investments are not trading of goods or securities and do not amount to exempted service. Therefore, the appellant is not liable for payment under provisions applicable to exempted services. Treatment of competing arguments: The Revenue argued that investment and redemption activities amounted to trading of securities, which is an exempted service, and hence the appellant should pay proportionate amount under Rule 6(3). The appellant countered that subscription and redemption are not trading, no title passes between third parties, and no service is provided. The Tribunal found the appellant's arguments consistent with legal principles and supported by multiple precedents, rejecting Revenue's contention. Conclusion: The Tribunal held that investment in and redemption from Mutual Funds do not constitute trading of goods/securities or exempted service under the Finance Act and Cenvat Credit Rules. Issue 2: Liability to pay amount under sub-rule (3) of Rule 6 of Cenvat Credit Rules due to non-maintenance of separate accounts Relevant legal framework and precedents: Rule 6(3) of the Cenvat Credit Rules, 2004 requires an assessee who provides both taxable and exempted services and uses common inputs or input services for both to pay an amount calculated as a percentage of the value of exempted services if separate accounts are not maintained. Precedents such as Siegwerk India Pvt. Ltd., Instakart Services Pvt. Ltd., and Cognizant Technology Solutions India Pvt. Ltd. have held that since investment in Mutual Funds is not an exempted service, Rule 6(3) does not apply. Court's interpretation and reasoning: Since the Tribunal held that the activity of investment in Mutual Funds is not an exempted service, the requirement to pay under Rule 6(3) does not arise. The appellant's failure to maintain separate accounts for exempted services is irrelevant because there is no exempted service involved. Key evidence and findings: The show cause notice computed the demand based on assumed value of exempted service (trading of securities). The appellant challenged the computation and the premise itself. The Tribunal found the premise flawed. Application of law to facts: The Tribunal applied the legal principle that Rule 6(3) is triggered only if exempted services are provided. Since no exempted service exists, the appellant is not liable to pay the amount demanded. Treatment of competing arguments: Revenue relied on the negative list and definitions of goods and securities to argue that trading of securities is exempted service and hence Rule 6(3) applies. The appellant argued that there is no exempted service and hence no liability. The Tribunal sided with the appellant. Conclusion: The demand under Rule 6(3) of the Cenvat Credit Rules is not sustainable. Issue 3: Sustainability of demand and penalty imposed by original authority Relevant legal framework and precedents: Provisions of Section 73(1) of the Finance Act, 1994 (relating to recovery of service tax), Rule 14 of Cenvat Credit Rules, and penalty provisions were invoked by the original authority. Precedents such as Instakart Services Pvt. Ltd. and Ace Creative Learning Pvt. Ltd. have also dealt with limitation and correctness of demands based on presumed exempted services. Court's interpretation and reasoning: The Tribunal found that the demand itself is based on erroneous assumption that the appellant provided exempted service of trading securities. Since this premise is incorrect, the demand and penalty cannot be sustained. Key evidence and findings: The appellant had paid a partial amount which was appropriated by the original authority. The Tribunal noted that the appellant had been filing returns under taxable services and had not suppressed facts, and that the Revenue's demand was based on audit observations without positive findings of trading activity. Application of law to facts: Since the foundational premise of demand is flawed, the penalty and recovery are also unsustainable. Treatment of competing arguments: Revenue relied on a High Court decision involving sale and service of motor vehicles to argue applicability of proportionate credit reversal. The appellant distinguished that case on facts, emphasizing no tangible goods trading here. The Tribunal accepted the appellant's distinction. Conclusion: The demand and penalty imposed by the original authority are set aside. Significant Holdings: "In view of the various provisions such as Section 2(h) of Securities Contracts (Regulation) Act, 1956, definition of goods under Section 65B(25) of Finance Act, 1994 and Rule 2(e) of Cenvat Credit Rules, 2004, Revenue is of the opinion that investment and disinvestment in Mutual Funds is trading of goods and trading of goods being exempted service in terms of sub-rule (3) of Rule 6 of Cenvat Credit Rules, 2004, appellant is required to pay 6% or 7% of the value of investment in Mutual Funds, since the appellant is not maintaining separate accounts of the input services going into providing taxable service and providing activity of investment and disinvestment in the Mutual Funds. ... We note that the issue involved in the present appeal is no more res integra and has been decided in favour of the appellant repeatedly by various Benches of this Tribunal." "The activity of subscription and redemption of the units of mutual funds cannot be said to be an activity of sale and purchase of the securities. It would, therefore, not be an activity relating to trading and securities. The activity undertaken by the appellant would, therefore, not be an exempted service in terms of section 66D(e) of the Finance Act and proportionate reversal of credit was not required to be made." "Even otherwise, the activity of investment in mutual fund cannot be termed as 'service' under the Finance Act. For an activity to fall under the ambit of 'exempted service' under rule 2(e) of the Credit Rules, the activity has to first qualify as a 'service'... The department has failed to substantiate that investment in mutual fund by the appellant involves a 'service' rendered by a service provider to a service recipient." "For the sake of ready reference, ... the Tribunal held that the investment in mutual funds by the appellant cannot be considered as an activity involving exempted services nor sale/trading of exempted goods. Thus, the demand on this count cannot be sustained." "In the light of our discussion above, we hold that: (a) investment in shares/security does not per se tantamount to 'trading in securities', (b) inputs/ input services cannot be said to be used in or in relation to 'trading in securities', and (c) 'trading in securities' is not a service, let alone an 'exempted service'." "The impugned order, therefore, cannot be sustained. It is, accordingly, set aside and the appeal is allowed."
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