2025 (5) TMI 66 - AT - Service Tax

Demand of Service Tax along with the interest and penalties - Payment of license fee to the Railways for providing catering services on board trains - scope of taxable services under section 66D of the Finance Act - Issuance of Show Cause Notice invoking the extended period of limitation - applicability of the reverse charge mechanism. Held That - Perusal of the order reveals that the issue as framed above has been decided by this Tribunal in favour of the assessee. Even Commissioner (Appeals) has dropped the demand of Rs.1, 43, 55, 406/- for the period 2013-14 to 2015-16 alongwith interest and penalty on this issue while relying upon several decisions with reference to support services. The balance demand of Rs.50, 98, 356/- for the period 2016-17 has been confirmed based on the amendment in the notification No.30/2012 dated 20.06.2012 but once the amount of licence fee paid itself is denied to be the consideration towards taxable service question of any liability of appellant service provider under Reverse charge mechanism (Notification No.30/2012) doesn t at all arises. The partial demand confirmed is also about the catering service being rendered by the appellant. Hence the confirmation of partial demand by Commissioner (Appeals) is also not sustainable. Therefore the Order-in-Appeal dated 24.01.2019 is hereby set aside. Consequently the appeal is allowed.

1. ISSUES PRESENTED and CONSIDERED

The core legal issue considered in the appeal is whether the license fee paid by the appellant to the Railways for providing catering services on board trains constitutes a taxable service under the Finance Act, 1994, specifically whether service tax is leviable on such license fee. This issue involves the interpretation of the scope of taxable services under section 66D of the Finance Act and the applicability of service tax on the license fee vis-`a-vis the actual catering services rendered.

Additionally, the matter touches upon the validity of the extended period of limitation invoked by the department, the correctness of penalties imposed under sections 76 and 78 of the Finance Act, and the applicability of the reverse charge mechanism under Notification No.30/2012 for the period post amendment.

2. ISSUE-WISE DETAILED ANALYSIS

Issue: Whether service tax is leviable on the license fee paid by the appellant to the Railways for the grant of license to provide on-board catering services.

Relevant Legal Framework and Precedents: The primary statutory provision considered is section 66D of the Finance Act, 1994, which enumerates taxable services. The appellant's activity falls under Outdoor Catering Service and Restaurant Service, but the license fee paid to Railways is scrutinized for taxability. The extended period of limitation was invoked by the department under section 73(2) of the Finance Act, 1994.

Precedents relied upon include the decision in M/s. Ambuj Hotels & Real Estate Pvt. Ltd. Vs. Director General of GST Intelligence, where the Tribunal held that the license fee paid as consideration for the grant of license is not a consideration for any support service and thus not taxable as service tax. The Supreme Court's rulings in Commissioner of Central Excise, Nagpur vs. M/s. Ballarpur Industries Ltd. and the Madras High Court decision in R. Ramadas vs. Joint Commissioner of Central Excise were also cited to emphasize that the demand must be confined to the services identified in the show cause notice and that what is not invoked cannot be examined.

Court's Interpretation and Reasoning: The Tribunal examined the nature of the license fee, which was paid as a consideration for the grant of a license or privilege to provide catering services on board trains. The license fee was based on assessed sales turnover and was not linked to any support services provided by Railways. The Tribunal noted that the show cause notice did not identify the "grant of license" as a taxable service, but rather sought to tax the license fee as consideration for support services, which was found to be incorrect.

The Tribunal referred to the Oxford Dictionary definition of "license fee" and the Supreme Court's explanation of "privilege" as a license or permit granted by the State, concluding that the license fee is consideration for the privilege granted by Railways. Taxing the license fee as consideration for a service other than the grant of license would exceed the scope of the show cause notice.

Key Evidence and Findings: The bid document and license agreement terms were examined, indicating that the license fee was payable in advance and was the consideration for the authorization to provide catering services. The department's demand was based on the license fee being taxable as support services, but the Tribunal found no nexus between the license fee and any support service.

Application of Law to Facts: Since the license fee was for the grant of license (a privilege) and not for any support service, and the show cause notice did not invoke the service of "grant of license," the demand for service tax on the license fee was unsustainable. The Tribunal applied the principle that a demand cannot go beyond the scope of the show cause notice and that the nature of consideration must align with the taxable service invoked.

Treatment of Competing Arguments: The department argued for the taxability of the license fee under the extended period and reverse charge mechanism based on Notification No.30/2012. The Tribunal rejected this, holding that if the license fee is not consideration for a taxable service, the reverse charge mechanism does not apply. The Tribunal also noted that the Commissioner (Appeals) had partially confirmed the demand for later periods but had set aside the demand for earlier periods, relying on support service precedents.

Conclusions: The Tribunal concluded that the license fee paid to Railways is not taxable service consideration and set aside the demand for service tax, interest, and penalties related to the license fee. The partial demand confirmed by the Commissioner (Appeals) was also found unsustainable and was set aside, allowing the appeal in full.

3. SIGNIFICANT HOLDINGS

"The license fee is the consideration paid for the 'grant of license'. It is pertinent to note that the words 'license fee' is defined the Oxford Dictionary to mean 'a fee paid to an organization for permission to own, use or do something.' The Supreme Court in State of Orissa vs. Narain Prasad explained the meaning of expression 'Privilege' and held that 'Privilege really means the license or permit granted by the State.' In the instant case, the license fee paid by the appellant to Railways is the consideration for the privilege to be the sole catering agent on board the trains for which a license was issued. This 'grant of license/privilege' is the service which was taxable and the value of this service is equal to the license fee which is the consideration paid for this service. The show cause notice has not identified this service. To tax this service would, therefore, result in going beyond the scope to the show cause notice."

"What is not invoked in the show cause notice cannot be examined in proceedings arising from the said notice."

"Once the amount of licence fee paid itself is denied to be the consideration towards taxable service, question of any liability of appellant, service provider under Reverse charge mechanism (Notification No.30/2012) doesn't at all arise."

Core principles established include the limitation that demands for service tax must strictly conform to the services invoked in the show cause notice, the license fee paid as consideration for the grant of license is distinct from consideration for support services, and that the reverse charge mechanism applies only when the underlying service is taxable.

Final determinations were that the service tax demand on the license fee paid by the appellant to the Railways is unsustainable and is set aside along with related interest and penalties. The partial demand confirmed for later periods is also set aside, resulting in the allowance of the appeal in entirety.

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