2025 (6) TMI 121 - AT - Service Tax

CENVAT Credit - trade discounts mentioned in the invoices raised on customers were actually passed on to the customers as contended by the appellant or not - CENVAT Credit - failure to pay 6%/7% on the exempted value under Rule 6(3)(i) of CCR - invocation of extended period of limitation - imposition of mandatory penalties. Whether the trade discounts mentioned in the invoices raised on the customers has been actually passed on to the customers as contended by the Appellant or not and whether the demand of service tax confirmed in the impugned order for the years 2014-15 and 2016-17 is sustainable? - HELD THAT - The demand of service tax though on the difference between P L account and ST3 return is only on the ground that the trade discount reflected in the invoices have not been actually passed on to the customers. From the findings and in view of the fact that the Commissioner himself have agreed that the discounts in question have been passed on to the customers the entire proposal made with regard to demand of service tax fails and the confirmation of demand on the ground that payment of service tax on un-billed revenue during the subsequent year i.e. 2017-18 (which is again outside the impugned proceeding) has not been proved or corroborated and is no ground and the demand is clearly beyond the scope of show cause notice - the entire demand of service tax confirmed in the impugned order on the ground of not passing on the discounts to their customers is set aside along with interest and penalties. Whether the appellant is required to reverse an amount in terms of Rule 6(3) (i) of CCR as a percentage of the value of the exempted services or not? - HELD THAT - It is seen that the advertisement service through print media is exempted and the appellant does not get any credit on their purchase bills. The issue is relevant only to the extent of input credit if any availed by the appellant for both taxable activity and exempted activity in common. The appellant has put forth that though advertisement in print media is exempted and their purchase invoices pertaining to print media does not carry any service tax while invoicing their customers they add service charges to the purchase cost and bill them accordingly. While doing so they do not charge service tax on the purchase cost but they charge service tax on the service charge added by them and they have remitted such service tax to the Department. As such they have contended that the print media advertising service rendered by them is not absolutely exempted in order to invoke Rule 6(3) as they have paid service tax on the value addition. The Commissioner though records this plea of the appellant in Para 14.1 of the impugned order but has neither considered the same nor recorded any finding for it. The claim of the appellant appears to be reasonable atleast to the extent that the revenue cannot pocket the tax in one hand and ask for reversal of credit on the other. The appellant has provided the details of common credit of Rs.7, 75, 471/-availed by them before the adjudicating authority in Para 10.10 of the reply with the connected workings and the Commissioner has not raised any objection with regard to the same. According to the appellant the proportionate reversal to be made is only Rs.2, 05, 639/- as put forth by them before the adjudicating authority in Para 11.2 of the reply and the Commissioner has not objected to this working also - since the appellant has paid service tax on value addition it cannot be construed as fully exempted at all calling for reversal of credit under Rule 6(3) or in the contrary if the output service provided through print media is to be reckoned as exempted then the service tax paid on the value addition in respect of such exempted services should be considered as reversal of credit made. Accordingly the appellant has reversed a credit of Rs.22, 97, 828/-as against the proportionate reversal amount of Rs.2, 05, 639/- which would more than suffice for all requirements that are legally cast under Rule 6(3) of Cenvat Credit Rules. Whether extended period of limitation is invokable in this case? - HELD THAT - The appellant has periodically reversed more than what is legally required to be done under Rule 6(3) by them by opting for proportionate reversal. As such invocation of extended period of limitation with regard to this demand also is not sustainable as the appellant has not evaded any payment of amount and the issue happens to be a mere procedural issue and nothing more. Whether the mandatory penalties can be imposed in this case? - HELD THAT - The demand confirmed against the appellant in this regard under Rule 6(3)(i) of cenvat credit rules along with interest and mandatory penalty imposed set aside. Conclusion - i) The demand of service tax for the period October 2014 to March 2015 and for 2016-17 on the ground of non-passing of trade discounts is set aside due to lack of evidence and acceptance by the Commissioner that discounts were passed on. ii) The demand under Rule 6(3)(i) of CCR for reversal of credit on exempted services is set aside as the appellant had paid service tax on value addition and reversed proportionate credit correctly; the department cannot choose the option on behalf of the appellant. iii) Extended period of limitation is not invokable as there was no suppression or evasion. iv) Mandatory penalties imposed are not sustainable and are set aside. Appeal allowed.

Summary

The core legal questions considered by the Tribunal in this appeal are:

i. Whether the trade discounts mentioned in the invoices raised on customers were actually passed on to the customers as contended by the appellant, and whether the demand of service tax confirmed in the impugned order for the years 2014-15 and 2016-17 is sustainable;

ii. Whether the appellant is required to reverse an amount in terms of Rule 6(3)(i) of the Cenvat Credit Rules (CCR) as a percentage of the value of exempted services;

iii. Whether the extended period of limitation is invokable in this case;

iv. Whether mandatory penalties can be imposed in this case.

Issue-wise Detailed Analysis:

1. Whether trade discounts were actually passed on and sustainability of service tax demand for 2014-15 and 2016-17:

The relevant legal framework involves the levy of service tax on the gross value of taxable services, with due consideration of trade discounts actually passed on to customers. The Department issued a Show Cause Notice (SCN) alleging that trade discounts declared as deductions were not actually passed on, and therefore service tax was evaded on the difference. The appellant contested this by submitting detailed ledger accounts and Chartered Accountant (CA) certificates showing that the trade discounts were indeed passed on to clients, albeit accounted for differently in their books.

The Commissioner, after considering the appellant's evidence, accepted that trade discounts were passed on for the year 2015-16 and dropped the demand for that year. However, demands were confirmed partially for the periods October 2014 to March 2015 and for 2016-17.

On detailed scrutiny, the Tribunal found that the SCN and impugned order relied on an erroneous and ad hoc figure of trade discount (Rs. 9.66 crores) which was not supported by invoice-wise or customer-wise verification. The appellant's ledger accounts and CA certificates showed the actual trade discount allowed was Rs. 6.06 crores, fully accounted for in their books. The Commissioner's pro-rata apportionment of discounts between two half-years and inclusion of exempted service turnover in the calculations were found to be flawed. The demand for tax on discounts pertaining to exempted services or periods outside the demand period was unsustainable.

Regarding 2016-17, the Commissioner accepted that the appellant maintained individual client ledgers and that discounts were passed on, thus no service tax was leviable on those discounts. The demand was incorrectly confirmed on a portion of the discount amount without substantiation. The issue of unbilled revenue was raised by the Commissioner, but the appellant demonstrated through detailed reconciliations, ledger accounts, and CA certificates that such revenue was accounted for in subsequent years with applicable service tax paid. The Tribunal held that demand based on unbilled revenue was beyond the scope of the SCN and thus not tenable.

In sum, the Tribunal concluded that the demand of service tax on the ground of non-passing of trade discounts was not supported by evidence and was unsustainable.

2. Requirement to reverse amount under Rule 6(3)(i) of CCR on exempted services:

Rule 6(3) of the Cenvat Credit Rules requires a provider of output service who avails credit on inputs or input services used partly for exempted services to reverse proportionate credit. The appellant's case was that advertisement services through print media are exempted, and they do not avail credit on purchase bills from print media as these do not carry service tax. The appellant adds a margin/commission on such purchases and charges service tax on this value addition, which has been duly paid. Therefore, the service is not fully exempted, and reversal of credit under Rule 6(3) is not warranted.

The Commissioner recorded the appellant's submissions but did not record any findings on this plea. The Tribunal found the appellant's contention reasonable, noting that the revenue cannot both pocket tax on value addition and demand reversal of credit on the exempted portion.

Further, the appellant argued that Rule 6(3) offers three options for reversal, and the choice lies with the assessee, not the department. The Tribunal relied on authoritative High Court decisions which held that the tax authorities cannot select an option on behalf of the assessee. The appellant had reversed proportionate credit on common input services, and the Commissioner did not dispute the calculations or amounts.

Rule 6(3AA) allows the adjudicating authority to permit a manufacturer or service provider who failed to exercise the option under Rule 6(3) and follow procedure under Rule 6(3A) to pay the amount calculated monthly with interest. The Commissioner denied benefit under Rule 6(3AA) on procedural grounds, as the appellant provided annual, not monthly, details. The Tribunal held that final determination annually is permissible and denial on trivial procedural grounds was not sustainable.

Ultimately, the Tribunal held that the appellant had reversed more credit than legally required and that the demand under Rule 6(3)(i) was unsustainable. The invocation of extended limitation for this demand was also rejected as the issue was procedural and not indicative of evasion.

3. Invokability of extended period of limitation:

The extended period is typically invoked in cases involving suppression or willful misstatement. The SCN alleged suppression of taxable value by the appellant. However, the Commissioner accepted that trade discounts were passed on and no suppression was found. The demand was based on financial statements (Profit and Loss accounts), which do not support any fraud or suppression. The Tribunal relied on precedent holding that extended limitation is not invokable in absence of suppression. Thus, extended limitation was not applicable.

4. Imposition of mandatory penalties:

Penalties under service tax law are generally linked to willful evasion or suppression. Since no suppression or evasion was found, and the demand itself was not sustainable, the Tribunal held that imposition of mandatory penalties was not justified.

Significant Holdings:

"No detailed verification conducted to ascertain whether the discounts in fact was passed on or not or whether only the net amount after discount have been paid for by the customers or whether they have paid the gross amount before discount. In the absence of any such concrete evidence, the impugned notice has made demand of service tax merely on the reason that the P&L account does not have an expenditure titled 'trade discount allowed'."

"The Commissioner in the impugned order has accepted the said discount value as having been passed on to the customers but considering the erroneous discount value of Rs.9,66,21,256/- as the total discount allowed in the invoice and the amount of Rs.6,06,01,566/- as the amount of discount passed on to the customers as per the ledger, has proceeded to demand tax on the diff value of Rs.3,60,19,690/- which is otherwise erroneous."

"The appellant is maintaining individual client ledger (from 2015-16 onwards) and the invoices mentioned there are net of discount only, thereby indicating that these discounts have indeed been passed on to their clients. Therefore no service tax is leviable on them."

"The demand of service tax, though on the difference between P&L account and ST3 return, is only on the ground that the trade discount reflected in the invoices have not been actually passed on to the customers. From the findings recorded herein above, and in view of the fact that the Commissioner himself have agreed that the discounts in question have been passed on to the customers, the entire proposal made with regard to demand of service tax fails."

"Rule 6(3) of Cenvat Credit Rules offers option to an output service provider who does not maintain separate accounts and if such option is not exercised by the service provider, the provision does not contemplate that tax authorities can choose one of the options on behalf of the service provider."

"There is nothing wrong in working out the liability on an annual basis and the decision of the Commissioner to deny the benefit of the above rule to the appellant for trivial procedural reasons could not be upheld at all."

"By application of Rule 6(3) what is sought to be reversed is the actual ineligible credit or proportionate ineligible credit and the said provision should not be construed as a mechanism for collecting more money than the ineligible credit in question, which is not supported by the law and not the intent of law."

"Extended period of limitation is not invokable as held in the case of Balajee Machinery Vs. Commissioner of CGST & Excise, Patna-II [2022 (66) GSTL 440 (Tri.-Kolkatta)]."

Core Principles Established:

- Demand of service tax on trade discounts not passed on must be supported by concrete evidence including customer-wise verification; mere absence of "trade discount allowed" in P&L is insufficient.

- Trade discounts evidenced by ledger accounts and CA certificates are deemed passed on, negating demand.

- The choice of method for reversal of credit under Rule 6(3) of CCR lies with the assessee; tax authorities cannot impose an option.

- Annual determination of reversal liability is permissible; procedural non-compliance with monthly details should not defeat substantive rights.

- Extended period of limitation and penalties require evidence of suppression or willful evasion, which was absent here.

Final Determinations:

1. The demand of service tax for the period October 2014 to March 2015 and for 2016-17 on the ground of non-passing of trade discounts is set aside due to lack of evidence and acceptance by the Commissioner that discounts were passed on.

2. The demand under Rule 6(3)(i) of CCR for reversal of credit on exempted services is set aside as the appellant had paid service tax on value addition and reversed proportionate credit correctly; the department cannot choose the option on behalf of the appellant.

3. Extended period of limitation is not invokable as there was no suppression or evasion.

4. Mandatory penalties imposed are not sustainable and are set aside.

The appeal is allowed with consequential relief as per law.