2015 (1) TMI 1262 - AT - Service Tax

Cassification - Supply of tangible goods service under Section 65(105)(zzzj) of Finance Act, 1994 - An agreement was entered by the appellant, which shows Right of possession' was with the lessee, the appellant, during the contract period - Held that By relying on the Tribunal's Judgment in case of Petronet LNG Ltd. Vs. CST 2013 (11) TMI 1011 - CESTAT NEW DELHI, the transactions fall within the ambit of the exclusionary clause of Section 65(105) (zzzzj) of the Act. - Decided against the revenue

Summary

Issues:
Refund claim of service tax paid under the wrong category - Whether the transaction falls under the category of supply of tangible goods service as per Section 65(105)(zzzj) of Finance Act, 1994.

Analysis:
The Appellate Tribunal CESTAT NEW DELHI heard a case where the Revenue filed an appeal against an order regarding a refund claim of service tax amounting to Rs. 11,25,05,830 paid wrongly by the respondents. The issue revolved around whether the transaction in question fell under the category of supply of tangible goods service as per Section 65(105)(zzzj) of the Finance Act, 1994. The respondents had entered into an agreement with another company where the ownership of the leased plant and equipment remained with the lessor, but the possession was transferred to the lessee during the contract period. The Commissioner (Appeals) had already ruled that the transaction did not fall within the defined category.

During the proceedings, the respondents cited a judgment in the case of Petronet LNG Ltd. Vs. CST, New Delhi, which they argued supported their position. The Appellate Tribunal noted that the CESTAT judgment in the Petronet LNG Ltd. case had held that transactions involving the transfer of the right to use tangible goods, with possession and effective control, were excluded from service tax liability under Section 65(105)(zzzj) of the Act. In light of this precedent, the Tribunal found no merit in the Revenue's appeal and dismissed it along with the stay petition. Additionally, a miscellaneous application for early hearing was also disposed of accordingly. The judgment emphasized the importance of possession and control in determining the taxability of such transactions under the relevant provisions of the Finance Act, 1994.