2014 (12) TMI 1006 - AT - Service Tax

Waiver of pre deposit - Supply of Tangible Goods service - Held that - In this case, in the absence of any evidence to show that wagons were used for transportation of goods of other clients also, it cannot be said that there is an element of supply of wagons to the railways. The wagons are exclusively used for transporting the appellant s goods and because the appellants have invested in the wagons they get a discount in the transportation. The transaction is similar to the case where a person may supply a crane to the service provider who mines ores for him and thereafter get some discount in the cost of mining. Can it be said that discount amount has to be treated as consideration for providing the crane. In fact it would be the additional consideration flowing from the receiver of service to the provider of service in the form of depreciation and interest element on the crane and it cannot be said that it amounts to SOTG Service. We are not convinced at this stage that revenue has been able to make out a case for levy of service tax under SOTG service against the appellant. Accordingly, the requirement of predeposit is waived and stay against recovery is granted for a period of 180 days from the date of this order - Stay granted.

Summary

Issues:
1. Tax liability on the activity of supply of BCCW wagons under the Liberalized Wagon Investment Scheme.
2. Jurisdiction of the Commissioner over the activity of supply of goods.
3. Determination of whether the activity amounts to 'Supply of Tangible Goods service' (SOTG service).
4. Application of extended period for confirming the demand.
5. Ownership and control over the wagons supplied to the Railways.
6. Consideration received in the form of freight concession.
7. Assessment of penalties under various sections of the Finance Act.

Analysis:

1. The appellants participated in the Liberalized Wagon Investment Scheme by railways, receiving a 15% discount in transportation charges. The tax liability arose due to treating this discount as consideration received for providing the service of supplying BCCW wagons. The Commissioner imposed a demand for service tax along with penalties under the Finance Act.

2. The department argued that the appellants procured the wagons, retained ownership and control, and supplied them to the Railways in exchange for freight concession. The Commissioner invoked the extended period for demand confirmation, alleging suppression of activity by the appellants.

3. The appellant contested the jurisdiction of the Commissioner, emphasizing that the supply of goods occurred in Hyderabad, not under the Commissioner's jurisdiction. Additionally, they argued that the activity did not fall under SOTG service as the wagons were exclusively used for internal transportation, with no evidence of usage for other clients.

4. The department contended that since the appellants invested in the wagons and handed them over to the Railways for transportation, service tax under SOTG service was applicable.

5. The Tribunal analyzed the situation and found that the wagons were solely used for transporting the appellant's goods, akin to providing equipment to a service provider for a specific purpose. The discount received was considered additional consideration, not constituting SOTG service. The Tribunal waived the predeposit requirement and granted a stay against recovery for 180 days.

This judgment highlights the importance of establishing the nature of transactions to determine tax liability accurately, emphasizing the need for clear evidence to support tax claims and jurisdictional decisions.