TMI Blog2022 (12) TMI 600X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the insurance sector. This was the finding in re Bharti- AXA Life Insurance Company Ltd [ 2021 (7) TMI 735 - CESTAT MUMBAI] which, de hors the decisions in earlier rulings, led to the outcome therein. The taint, if any, that the other decisions may have vis- -vis the recall of the decision in re Reliance Life Insurance Company Ltd [ 2018 (4) TMI 1407 - CESTAT MUMBAI] has no bearing on the binding precedent of this decision placed before us on behalf of the appellant. The surrender value so retained had already been subjected to tax as premium for rendering of taxable service and not liable to be taxed again for that very reason upon ceasing to be provision service - SERVICE TAX APPEAL NO: 85934 OF 2015 WITH MISCELLANEOUS APPLICATION (EH) NO. 85241 OF 2021 - FINAL ORDER NO. A /86165 /2022 - Dated:- 7-12-2022 - MR C J MATHEW, MEMBER (TECHNICAL) AND MR AJAY SHARMA, MEMBER (JUDICIAL) Shri S S Gupta, Chartered Accountant for the appellant Shri Nitin M Tagade, Joint Commissioner (AR) for the respondent ORDER The miscellaneous application for out of turn disposal of the appeal has been rendered infructuous as the appeal itself has been listed fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amages and hence not liable to levy under Finance Act, 1994 though this order was recalled subsequently while disposing off application for rectification of mistakes and the outcome thereafter remains unknown. This was also one of the issues for consideration by the Tribunal in Shriram Life Insurance Company v. Commissioner of Customs, Central Excise Service Tax, Hyderabad-IV [2019 (2) TMI 868-CESTAT HYDERABAD] and in Max Life Insurance Co India Ltd v. Commissioner of Central Excise Service Tax (LTU), New Delhi [2019 (8) TMI 967 CESTAT DELHI] in both of which there is reference to the order in re Reliance Life Insurance Company Ltd. 5. In re Bharti-AXA Life Insurance Company Ltd, the deficit as binding precedent, for having followed the decision in re Reliance Life Insurance Company Ltd, of the other two decisions of the Tribunal had been set forth and, to avoid controversy, a separate and independent finding based on the nature of the transaction was recorded to hold that surrender charge was not taxable under section 66 of Finance Act, 1994. 6. On perusal of the decision in re Bharti-AXA Life Insurance Company Ltd, wherein it has been held that 9. It is common ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not a service at all but the transaction in a actionable claim hence could not have been by any stretch of imagination covered under any of the specified taxable hence a service even for the period prior to 01.07.2012. . 13. We are unable to agree with the Adjudicating Authority that the amounts recorded as surrender/discontinuance charges are consideration for services rendered and surcharges are designed to recoup the expenses already incurred towards procurement administration of the policy and incidental thereto. The finding of the Adjudicating Authority on premise entirely are incorrect reading of the IRDA (treatment of discontinuance linked insurance policy) regulations, 2010 and overlooking the first principle and fundamental position that for an activity to be taxed as service under provisions of Finance Act, 1994, the activity has to first qualify as a service. In our view, the regulations framed by IRDA with the aim of protecting of the insured by providing for a yardstick for computation for the surrender and the consequent discontinuance charges cannot be read and applied out the services rendered a transaction in an actionable claim, as a service, liable to be ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for Learned Authorised Representative to conceive that such recall must, inevitably, lead to a contrary opinion on the part of the Tribunal. Indeed, it could well be speculated that, owing to the challenge before the Hon ble High Court of Bombay, the recall order is itself in jeopardy. In any case, it can be seen from the two cited decisions that the conclusions therein have been arrived at independently of the recalled order and on its own reasoning. Mere reference to the recalled decision does not, ipso facto, render the finding to be bereft of value as precedent. We would not be straying from the path of judicial consistency by following the two decisions arising from identical disputes. We do so on the bedrock of our obligation to judicial discipline and in circumstances that do not hanker for an alternative finding. we take note that the issue in dispute has, thus, attained finality and is on the same set of facts as the dispute before us. 7. From the analysis of the scheme of voluntary withdrawal from coverage under unit linked insurance policy (ULIP) , it is seen that the transaction has been contrived by the adjudicating authority as an issue under section 67 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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