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2025 (6) TMI 184 - AT - Service TaxTime limitation for issuance of SCN - Classification of services - Banking and Other Financial Service or not - amounts deducted by foreign banks towards bank charges on export proceeds - reverse charge mechanism - HELD THAT - This Tribunal has decided the very same issue in favour of the appellants in their own case M/S. SKM EGG PRODUCTS EXPORT (I) LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE (APPEALS) ANNAI MEDU SALEM 2023 (3) TMI 1384 - CESTAT CHENNAI on a Show Cause Notice issued to the appellants covering the period 2006 2007 and vide M/S. SKM EGG PRODUCTS VERSUS COMMISSIONER OF GST AND CENTRAL EXCISE. SALEM COMMISSIONERATE 2025 (1) TMI 1038 - CESTAT CHENNAI on a Show Cause Notice issued to the appellants covering the period July 2012 to March 2013. It is found that the present proceedings are for the period from 1.4.2013 to 30.9.2013. This Bench in M/S. SKM EGG PRODUCTS EXPORT (I) LTD. VERSUS THE COMMISSIONER OF CENTRAL EXCISE (APPEALS) ANNAI MEDU SALEM has held the impugned order that demanded service tax on foreign bank charges set aside. Conclusion - Service tax under reverse charge on Banking and Other Financial Services is payable only by the actual service recipient. The impugned order cannot be sustained - Appeal allowed.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Tribunal are: - Whether the amounts deducted by foreign banks towards bank charges on export proceeds are taxable under the category of "Banking and Other Financial Services" under the reverse charge mechanism prescribed in Rule 2(1)(d)(i)(G) and Rule 6 of the Service Tax Rules, 1994. - Whether the appellant, who did not directly engage with the foreign banks but received export proceeds net of foreign bank charges through their Indian bankers, is liable to pay service tax on such deducted amounts. - The sustainability of invoking the extended period of limitation for service tax demand and the imposition of penalties in the facts of the case. 2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Taxability of foreign bank charges deducted from export proceeds under "Banking and Other Financial Services" Relevant legal framework and precedents: The Service Tax Rules, 1994, particularly Rule 2(1)(d)(i)(G) and Rule 6, govern the reverse charge mechanism applicable to banking and financial services. The Tribunal relied extensively on precedents including the decisions in M/s. Dileep Industries Pvt. Ltd. v. CCE, Jaipur and Greenply Industries Ltd. v. CCE, Jaipur, which examined the taxability of bank charges deducted by foreign banks in export transactions. Court's interpretation and reasoning: The Tribunal observed that the appellants submitted export sale proceeds realization documents to their Indian bank (SBI), which then engaged foreign banks for collection. The foreign banks deducted charges before remitting the proceeds to SBI. Importantly, the appellants never directly dealt with the foreign banks, and the foreign banks' services were rendered to SBI, the Indian bank, not to the appellants. The Tribunal cited the principle established in the Dileep Industries case, where it was held that the appellant cannot be treated as the service recipient of the foreign bank's services, and thus, no service tax liability arises on the appellant under the reverse charge mechanism. The Tribunal also referenced the Greenply Industries decision, which reinforced that where no direct service relationship exists between the appellant and the foreign bank, service tax under Section 66A and relevant rules cannot be imposed on the appellant. Key evidence and findings: The documentary evidence showed that the foreign bank charges were deducted before remittance to the Indian bank, and the appellants were charged by the Indian bank, not directly by the foreign bank. There was no evidence of direct dealings or service receipt by the appellants from the foreign banks. Application of law to facts: Applying the legal principles and precedents, the Tribunal concluded that the foreign bank charges did not constitute a taxable service received by the appellants. The appellants were not liable to pay service tax on these amounts under the reverse charge mechanism. Treatment of competing arguments: The Revenue argued for taxability and upheld the original orders demanding service tax, interest, and penalties. The Tribunal rejected this, relying on binding precedents and the factual matrix showing no direct service relationship between the appellants and foreign banks. Conclusions: The Tribunal held that the foreign bank charges deducted from export proceeds are not taxable under "Banking and Other Financial Services" for the appellants, as there is no direct service receipt by them. Issue 2: Invoking extended period of limitation and imposition of penalties Relevant legal framework and precedents: The extended period under service tax law can be invoked only under specific circumstances such as suppression of facts or fraud. The Tribunal examined whether such conditions were met. Court's interpretation and reasoning: The Tribunal found no evidence of suppression or fraud by the appellants. The demand related to the foreign bank charges was not sustainable, and therefore, invocation of extended period and penalties were unwarranted. Key evidence and findings: The Tribunal's earlier decisions on similar issues for adjacent periods had not upheld extended period or penalties. Application of law to facts: Since the primary demand itself was unsustainable, the extended period and penalties could not be sustained. Treatment of competing arguments: Revenue's insistence on penalties was rejected based on lack of merit and the Tribunal's prior consistent rulings. Conclusions: The invocation of extended period and penalties was not justified and hence not sustainable. 3. SIGNIFICANT HOLDINGS The Tribunal's crucial legal reasoning is encapsulated in the following verbatim extract from its earlier ruling, which was applied to the present case: "The appellants have submitted the documents for realization of export sale proceeds to their bank namely SBI, which in turn has used the services of the foreign bank for collection of export sale proceeds. Obviously, the foreign banks who have rendered their services, have deducted their charges while remitting the export sale proceeds to SBI. The appellant has never dealt with the foreign bank on his own and the Banking and Other Financial Service if at all was rendered only to SBI." Further, the Tribunal reiterated the principle from the Dileep Industries case: "When it is so, then the appellant are not entitled to pay the service tax. The identical issue has come up before the Tribunal... where it was observed that no documents have been produced showing that foreign bank has charged any amount from the appellant directly... In view of this, the appellant cannot be treated as service recipient and no service tax can be charged under Section 66A read with Rule 2 (1)(2)(iv) of the Service Tax Rules, 1994." The core principles established are:
The Tribunal's final determination was to set aside the impugned order confirming service tax demand, interest, and penalties, and to allow the appeal with consequential benefits as per law.
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