Order Date – 15 September 2023

Parties: Incredible Indian Moments Pvt. Ltd. Vs Commissioner (Appeals) and Additional Director General, DGGSTI

Facts – 

• The Appellant, Incredible Indian Moments Pvt. Ltd. , is a Tour Operator, to provide these services, they use the services of taxis and the operators of these taxis paid service tax and recovered it along with their service charges from the appellant. The appellant availed CENVAT credit of the service tax so paid and utilised it in paying service tax on its output service.
• A show cause notice was issued to the appellant demanding service tax invoking extended period of limitation under the proviso to section 73(1) of the Finance Act along with interest and impose penalties, on the ground that the appellant is responsible to pay service tax on reverse charge basis in view of Notification No. 30/2012-ST dated 20.6.2012 on the services of the taxis which it had hired.
• The proposals in the SCN are confirmed by the OIO and on appeal affirmed by the impugned order.

Issue – 

• Whether the appellant is liable to pay service tax on reverse charge basis on the services of the taxis which it had hired?

Order – 

• The Tribunal observed that the services of the taxi operators are the input services to the appellant. From the invoices produced it is evident that the taxi operators were paying service tax on their services considering themselves liable to pay service tax and the appellant has been taking CENVAT credit of such service tax. To charge service tax again on reverse charge basis from the appellant (the service recipient) would result in double taxation on the same service.
• Even otherwise, the notification refers to persons ‘not in the same line of business’ and NOT ‘persons engaged in the same business’ and the two are distinct. Since the appellant is in the similar line of business, it was not covered S. No. 7 (a) of the notification. Further, no grounds to invoke the extended period of limitation under the proviso to section 78(1) was noticed by the Tribunal. 
• There is no fraud or collusion or wilful mis-statement or suppression of facts or violation of the Act or Rules with an intent to evade payment of service tax as appellant has been filing service tax returns regularly. Thus, the entire exercise is revenue neutral and in such a situation, the appellant cannot be alleged to have had an intent to evade payment of service tax.
• Hence, the impugned order of the Commissioner (Appeals) cannot be sustained. The impugned order set aside and the appeal is allowed.