2013 (8) TMI 219 - AT - Service Tax

Stay - Survey and Exploration of Minerals, Oil and Gas Services Duty demand Interest and Penalty Revenue was of the view that freight charges and equipment rental charges paid by the applicant to the foreign contractors have to be included in the value of taxable service Held that - The service agreement was in relation to survey and exploration of minerals, oils and gas services and rental of equipment was part of the service the foreign contractors do not have their office in India - assesse paid service tax as recipient of taxable service on clearing charges and service engineer in terms of Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994 but not on freight charges and equipment rental charges - the agreement placed by the learned senior counsel was in complex nature assesse had taken the equipments on rental basis of the agreement. Waiver of pre deposit applicant failed to make out a prima facie case for waiver of entire amount of dues - 30 lakhs were ordered to be submitted upon such submission rest of the duty stayed till the disposal Decided partly in favor of assesse.

Issues:
Demand of service tax on freight and equipment rental charges paid to foreign contractors, applicability of Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994, tax liability prior to the introduction of tax on supply of tangible goods, limitation on demand, financial hardship of the applicant.

Analysis:

1. Demand of Service Tax on Freight and Equipment Rental Charges:
The applicant, engaged in exploration of minerals, oil, and gas services, faced a demand of service tax on freight and equipment rental charges paid to foreign contractors. The Commissioner confirmed the tax, interest, and penalties. The applicant argued that after the introduction of tax on the supply of tangible goods, they have been paying tax regularly, and the demand for the same service prior to this introduction is unsustainable.

2. Applicability of Rule 2 (1) (d) (iv) of the Service Tax Rules, 1994:
The Ld. Senior Counsel contended that the supply of equipment by foreign contractors falls under the supply of tangible goods for use. The applicant received equipment on a rental basis for exploration of oil and gas, which, according to Section 65 (105) (zzzzj) of the Finance Act, 1994, is considered a supply of tangible goods. The argument was supported by the regular payment of tax on such supplies post the introduction of the tax on the supply of tangible goods.

3. Tax Liability Prior to Introduction of Tax on Supply of Tangible Goods:
The applicant highlighted that the tax demand was for a service provided before the introduction of the tax on the supply of tangible goods. The Ld. Senior Counsel argued that the demand is not sustainable under the circumstances and referred to a decision of the Hon'ble Bombay High Court in support of their case.

4. Limitation on Demand and Financial Hardship:
The applicant claimed that the demand is barred by limitation and emphasized the financial hardship faced by the company. The Ld. AR, however, reiterated the Commissioner's findings, stating that the rental of equipment is an essential part of the service activity of exploration of minerals, oil, and gases.

5. Judgment and Predeposit Order:
The Tribunal found the agreement between the parties to be complex, with the rental of equipment being part of the service agreement for survey and exploration of minerals, oils, and gas services. The Tribunal directed the applicant to make a predeposit of Rs.30,00,000 within six weeks, with the balance tax, interest, and penalty being waived upon such deposit. The recovery of the balance amount was stayed during the pendency of the appeal, with a compliance report due on a specified date.

This detailed analysis covers the various issues involved in the legal judgment delivered by the Appellate Tribunal CESTAT CHENNAI, providing a comprehensive overview of the arguments presented and the final decision rendered in the case.

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