2025 (6) TMI 10 - AT - Service Tax

Demand of Service Tax - remittance of export proceed funds - verifying export documents and payment processing to their Agent - whether the demand of Service Tax for an alleged banking and financial service is justified - HELD THAT - We have carefully considered the Final Order No.40531-40533/2024 dated 08.05.2024 of this very Chennai Bench of CESTAT in the case of Eastman Exports Global Clothing Pvt. Ltd. Vs. Commissioner of Central Excise Service Tax Coimbatore in Service Tax 2024 (5) TMI 417 - CESTAT CHENNAI . wherein an almost similar issue was considered. This Bench in the said case also considered various other judicial pronouncements and after considering the rival contentions it was found proper to set aside the demand since according to the Bench the conditions of Banking and Financial Services were not satisfied. We find that since the issue is similar in the present case as well the above ruling would apply squarely and following the ratio decidendi we are of the view that impugned order and demand therein cannot sustain for which reason we set aside the impugned order and allow the appeal with consequential benefits if any as per law.

Summary

The core legal question considered by the Tribunal was whether the demand of Service Tax on amounts retained by a foreign entity as fees for banking and financial services, specifically in the context of export proceeds remittance, was justified under the applicable Service Tax law and the Reverse Charge Mechanism.

The Tribunal examined two interrelated issues: (1) the taxability of charges deducted by foreign banks or financial service providers from export proceeds remitted to the Indian exporter, and (2) the applicability of Service Tax on amounts retained by an overseas agent under the category of 'cash management' or other financial services, particularly under the negative list regime post legislative amendments.

Regarding the first issue, the Tribunal analyzed the legal framework governing Service Tax on banking and financial services, including the Reverse Charge Mechanism under the Finance Act, 1994. The Revenue contended that the 3% amount retained by the overseas agent constituted consideration for banking and financial services rendered to the appellant and was thus taxable under Service Tax law. The appellant challenged this, arguing that the foreign bank or agent was not providing services directly to them but rather to the foreign buyer or the Indian bank, and that they had no direct contractual relationship with the foreign service providers.

The Tribunal relied heavily on precedents from its own bench and other judicial authorities which had addressed identical or analogous facts. Key decisions cited included rulings where the Tribunal held that charges deducted by foreign banks while remitting export proceeds to Indian banks did not constitute a service provided to the Indian exporter but rather a service rendered by the foreign bank to the Indian bank. In these cases, the exporters were not aware of the identity of the foreign banks, had no agreement with them, and did not directly pay the charges. The Tribunal emphasized that the mere deduction of charges by foreign banks from export proceeds could not be construed as a taxable service received by the Indian exporter under the Reverse Charge Mechanism.

Further, the Tribunal noted clarifications issued by the Central Board of Excise & Customs (CBEC) in Trade Notices and Circulars which supported the position that services rendered by foreign banks were not received by the Indian exporter, negating the applicability of Service Tax on such charges. The Tribunal also referenced the Place of Provision of Services Rules, 2012, and the definition of 'intermediary' to conclude that if the overseas agent was an intermediary, the service was rendered outside the taxable territory and hence not liable to Service Tax in India.

On the second issue concerning the amounts retained by the overseas agent under 'cash management' or other financial services, the Tribunal scrutinized the legislative intent and amendments to the Finance Act, 1994, particularly the shift to a negative list regime from 1st July 2012. It observed that prior to this date, the taxability of such services was limited and that the definition of 'cash management' services was intended to capture activities like chit funds, as clarified by RBI and CBEC circulars. The Tribunal found that the activity undertaken by the overseas agent did not fall within the ambit of taxable 'cash management' services as envisaged by the statute and clarifications.

For the post 1st July 2012 period, the Tribunal examined the concept of 'consideration' and the requirement that services must be rendered 'for another' to constitute taxable service under section 65B(44) of the Finance Act, 1994. It held that the contractual obligation to remit export proceeds rested with the foreign buyer, not the appellant, and that the overseas agent acted merely as a delegate or intermediary, performing services outside India. Therefore, the appellant could not be deemed to have received taxable services from the overseas agent, and the demand for Service Tax under the Reverse Charge Mechanism was unsustainable.

The Tribunal also addressed competing arguments raised by the Revenue that the appellant, having a permanent establishment in India and making payment of service fees, was liable under section 68(2) of the Finance Act, 1994. The Tribunal rejected this, finding that the appellant was not the recipient of the service in the requisite legal sense, and the foreign agent's role did not amount to a taxable service provided to the appellant.

In applying the law to the facts, the Tribunal emphasized the absence of a direct service provider-recipient relationship between the appellant and the foreign bank or agent, the contractual arrangements placing responsibility on the foreign buyer, and the nature of the overseas agent's activities as intermediaries outside India. It distinguished the mere transfer of money from the provision of comprehensive banking and financial services, underscoring that the latter was not established on the facts.

In conclusion, the Tribunal held that the demand for Service Tax on the amounts retained by the overseas agent as fees for banking and financial services was not sustainable. It set aside the impugned orders and allowed the appeals, granting consequential relief where applicable.

Significant holdings include the following verbatim excerpts capturing the Tribunal's legal reasoning:

"By no stretch of imagination can such foreign bank be considered as a service provider for the appellant who in most cases would not even be aware of the identity of such foreign bank. The act of deduction of an amount as charges for transfer of the foreign exchange to the Indian bank from the sale proceeds of the appellant is only a facility for collecting such charges from the Indian bank. This cannot be considered as payment of charges for services by the appellant to the foreign bank."

"The foreign bank in which the overseas buyer deposits the sale proceeds is chosen by the foreign buyer and not by the appellant, who is situated in India."

"The exporter or importer in India does not have any formal or informal agreement with the foreign bank, does not even know the quantum of charges which the foreign bank would be recovering. Therefore, services are provided by the foreign bank to the bank in India and not to the Indian exporter."

"It is not the contractual responsibility of the appellants to collect the dues and, therefore, by no stretch can it be held that the mediation of M/s Amsco Finance Ltd is a substitution for the task that would, otherwise, fall to the appellants."

"If at all, the Hong Kong entity is an 'intermediary' within the meaning assigned in Place of Provision of Service Rules, 2012 to render the service, it has been performed in Hong Kong and, thus, not in the taxable territory."

"The demand for the period after 1st July 2012 also fails. Consequently, the liability for allegedly having received services provided by M/s Amsco Finance Ltd also does not sustain."

"The service of remittance by a foreign bank to Indian bank of the exporter is not liable to service tax at the hands of the exporter."

Core principles established include:

- The absence of a direct contractual relationship and knowledge of the foreign bank or agent by the Indian exporter negates the existence of a taxable service received by the exporter.

- Charges deducted by foreign banks for remittance of export proceeds to Indian banks are bank-to-bank transactions and do not constitute taxable services rendered to the exporter.

- Under the negative list regime, the definition of 'service' requires the activity to be carried out 'for another' for consideration, and the place of provision rules and intermediary status are critical in determining taxability.

- The Reverse Charge Mechanism does not apply where the Indian recipient does not receive the service directly or where the service is rendered outside the taxable territory.

- Legislative clarifications and CBEC circulars must be given due weight in interpreting the scope of taxable financial services.

Final determinations were that the Service Tax demand on the amounts retained by the overseas agent and foreign banks was not sustainable either before or after the introduction of the negative list regime, and all impugned orders confirming such demand were set aside with appeals allowed accordingly.