CESTAT | Whether service tax is payable on liquidated damages and penalties recovered under the contract? Tribunal answers
Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Dilip Gupta (President) and P.V. Subba Rao (Technical Member) allowed the appeals which were related to demand of service tax on liquidated damages recovered by the appellant for acts of default, like delayed or deficient supplies by various suppliers.
The appellant was a Public Sector Undertaking engaged in excavation of lignite from the captive mines at Neyveli in Tamil Nadu and at Barsingsar in Rajasthan. Lignite is principally consumed in the generation of electricity at the thermal power stations of the appellant.
The appellant had executed a contract dated 10-08-2006 with Bharat Heavy Electricals Limited for design, engineering, manufacture, supply, erection, testing, commissioning, and supply of two Circulating Fluidised Bed Combustion steam generators, complete with all accessories and auxiliaries and two Steam Turbines. BHEL was required to complete successful performance guarantee tests for UNIT 1 within 35 months of date of Letter of Award and for UNIT 2 within 39 months of date of Letter of Award. As BHEL failed to adhere to the above time limits, the appellant recovered liquidated damages in terms of the contract. Likewise, the appellant recovered liquidated damages for non-adherence to the time schedule for supplies from other contractors/Vendors. The appellant was served with show cause notice and he filed a detailed reply in which he mentioned that proceedings may be dropped for the reason that no service tax was payable on liquidated damages and penalties recovered under the contract.
The Commissioner not accepting his contentions had passed an impugned order against the appellant, thus the instant appeal was filed.
Ms Krithika Jaganathan, counsel appearing for the appellant submitted a number of case laws which supported their contention that the amount of liquidated damages/penalty collected for non-compliance of the terms of the contracts cannot be subjected to levy of service tax.
The Tribunal was convinced with the arguments of the counsel of the appellant that no service tax was payable on the amount collected towards liquidated damages considering the decision relied on by the counsel in South Eastern Coalfields Ltd. v. Commr. of Central Excise and Service Tax, 2020 (12) TMI 912.
The Tribunal observed that the Commissioner, however, did not accept the contention advanced on behalf of the appellant and confirmed the demand of service tax holding that the amount received by the said appellant towards penalty, earnest money deposit forfeiture and liquidated damages would tantamount to a consideration “for tolerating an act” on the part of the buyers of coal/contractors, for which service tax would be levied under section 66 E(e) of the Finance Act.
The Tribunal rejected the contentions advanced on behalf of the Department that penalty amount, forfeiture of earnest money deposit and liquidated damages had been received by the said appellant towards “consideration” for “tolerating an act” leviable to service tax under section 66E(e) of the Finance Act.
The Tribunal while allowing the appeal held that the view taken by the Commissioner that since BHEL did not complete the task within the time schedule, the appellant agreed to tolerate the same for a consideration in the form of liquidated damages, which would be subjected to service tax under section 66E(e) of the Finance Act cannot be sustained.[Neyveli Lignite Corprn. Ltd. v. Commr. Of CCE & ST, Service Tax Appeal No. 41666 of 2016, decided on 26-07-2021]
Suchita Shukla, Editorial Assistant has reported this brief.